LIQ-4-01-RR:CR:DR 229420 DR
Port Director
US Customs Service
P.O. Box 52-3215
Miami, FL 33152
RE: Protest No. 5201-02-100016 and Application for Further Review; 19 U.S.C. §1504(d); “deemed liquidation”; extension of liquidation; liquidation instructions; Pagoda Trading Corporation v. U.S.
Dear Sir or Madam:
The above referenced protest and application for further review was forwarded to this office for a determination. We have considered the points raised by Protestant and your office, and a decision follows.
FACTS:
On May 19, 1999, the Department of Commerce (“Commerce”) determined that stainless steel sheet and strip in coils (stainless sheet in coil) from Germany are being, or are likely to be, sold in the United States at less than fair value (LTFV), as provided in section 735(a) of the Tariff Act. See Notice of Final Determination of Sales at Less than Fair Value: Stainless Steel Sheet and Strip in Coils from Germany, 64 FR 30710 (June 8, 1999) (Final Determination). Liquidation of all entries subject to the notice was suspended.
According to the information contained in the protest, Protestant made eighteen entries of stainless steel between June 4, 1999, and October 27, 1999. The steel was entered under subheading 7220.20.90, HTSUS. The entry summary lists antidumping case number A-428-825-000, and asserts a rate of 21.34% on entries 004-XXXX484-7 and 004-XXXX126-1. The entry summary for entry 004-XXXX974-1 lists antidumping case A-428-825-000 and a rate of 25.37%. The remaining 15 entries list the antidumping case but the rate is 25.84%. Copies of the reimbursement statement that was required by 19 C.F.R. 351.402 were included in the copies of the entry documents. Protestant describes the steel as “stainless steel sheet and strip,” and refers to that steel as “Semivac 90.” That term is shown on the copies of the relevant import invoices. However, according to information obtained from the port at which the protest was filed, Entry 004-XXXX268, as listed in the “Attachment of Entry Numbers and Entry Dates,” does not fall within the scope of the protest. The proper entry number is actually 004-XXXX41-1, which was listed on the first page of the CF 6445A, but not in the “Attachment of Entry Numbers and Entry Dates” which was attached to the protest.
On July 27,1999, Commerce published an Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order for stainless steel sheet and strip in coils from Germany (64 Fed.Reg. 40557). In that publication, cash deposits of 25.37% ad valorem were required for the subject entries. On July 20, 2000, Commerce published Notice of Opportunity to Request Administrative Review of Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation for the subject merchandise, among others (65 Fed.Reg. 45035).
Message 1074203 dated March 15, 2001, contained liquidation instructions on stainless steel sheet and strip covered by case A-427-825 for the period January 4, 1999, through June 30, 2000. The message stated that because Commerce had not received a request for an administrative review of the antidumping duty order for the above merchandise and period, suspension of liquidation was lifted, and directed Customs to liquidate all entries for all firms, except KruppThyssen Nirosta GmbH.
On May 18, 2001, Protestant requested that Commerce determine that a specialty stainless steel strip product known as Semivac 90 was outside the scope of the antidumping duty order on stainless steel sheet and strip in coils from Germany; in the alternative, Protestant requested that Commerce revoke, in part, the antidumping duty order on stainless steel sheet and strip in coils from Germany on the basis of "changed circumstances." See Letter from Sandler, Travis & Rosenberg, P.A., May 18, 2001. Protestant, in the same letter to Commerce in which it requested a scope inquiry, also, in the alternative, requested that Commerce conduct a changed circumstances review pursuant to 19 C.F.R. §351.216 “in the event that [Commerce] is unable to clarify … that Semivac 90 is excluded from the scope of the [antidumping duty case] pursuant to 19 C.F.R. §351.225…” See Page 5, Part II. Protestant requested an extension of liquidation under 19 U.S.C. 1504(b)(2) by letter dated May 21, 2001, addressed to the port. A copy of that letter was included in Protestant’s Exhibit 2. The basis of the extension request was the existence of the pending “scope ruling request.” Protestant contends that the scope request suspends liquidation.
On July 5, 2001, producers of the domestic like product informed Commerce that, consistent with the position stated during the less-than-fair-value investigation, they had no objection to Protestant's request. However, Commerce initiated a changed circumstances inquiry on August 17, 2001 (66 Fed.Reg.43183). In the notice of initiation, Commerce stated if “the final revocation in part occurs, we intend to instruct the U.S. Customs Service to liquidate without regard to antidumping duties, as applicable, and to refund any estimated antidumping duties collected for all unliquidated entries of certain stainless steel strip products meeting the specifications indicated above, not subject to final results of administrative review as of the date of publication in the Federal Register of the final results of this changed circumstances review, in accordance with 19 CFR 351.222(g)(4). We will also instruct the Customs Service to pay interest on such refunds in accordance with section 778 of the Tariff Act.” The notice contained no language directing Customs to suspend liquidation.
On October 2, 2001, Commerce published the notice of final results of changed circumstances review, and revocation, in part, of order of the antidumping duty order (66 Fed.Reg. 50173), in which it stated that it would instruct Customs to liquidate without regard to antidumping duties, as applicable, “all unliquidated entries of this specialty stainless product not subject to final results of an administrative review, as of the date of publication of these final results of review in the Federal Register …. We will also direct the Customs Service to refund any estimated antidumping duties collected, and to pay interest on such refunds in accordance with section 778 of the Tariff Act. Finally, we will instruct the Customs Service to discontinue the suspension of liquidation and the collection of cash deposits on entries of Semivac 90 effective on the date of publication of this notice.”
Message 1288201 dated October 15, 2001, stated that the dumping order for case A-428-825 was revoked in part with respect to a specialty steel strip commonly supplied under the trade name “Semivac 90.” The message described the steel as a permanent magnet iron-chromium-cobalt stainless steel strip containing by weight 13% chromium, 6% cobalt, 71% iron, 6% nickel, and 4% molybdenum. The physical dimensions included widths up to 12.7 mm, inclusive, thickness between 45 and 75 microns, inclusive, and with magnetic resonance of 400 to 780 NWB. The message stated that it applied to imports of Semivac 90 that were entered on or after October 2, 2001, and that entries of Semivac 90 that were unliquidated as of October 2, 2001, should be liquidated without regard to dumping duties and directed Customs to refund all applicable cash deposits. The message also provided for the assessment of interest under 19 U.S.C. 1677g, and provided for a contact should any questions arise.
The entry invoices are from Vacuumschmelze GmbH. It is unclear whether that entity is the manufacturer. The importer listed “DEVACSCH 37HAN” and “DEVACGMB2253 – HAN” in block 21 on each of the CF-7501’s. The invoices of Vacuumschmelze GmbH contain a reference to a supplier number. That entity has an address listed as Postfach 2253, D-63412 Hanover, Germany. In the attachments to the May 18, 2001, scope ruling are mill analyses issued by Vacuumschmelze GmbH, included in the protest, Exhibit 2.
The protested entries were liquidated by Customs on October 19, 2001, with antidumping duties assessed. The protest was filed December 31, 2001, and is stated to be against the liquidations on the ground that Customs failed to grant the importer’s request for extension of liquidation. Also, the protest states that it is against the liquidation of the eighteen entries listed on the schedule that accompanied the CF 19, and any other entries of the Protestant’s “Semivac 90” that the Customs Service liquidated pursuant to Commerce message 1288201, dated October 10, 2001. The notice of August 17, 2001 (66 Fed.Reg. 43183) states that Commerce initiated a changed circumstances review under 19 C.F.R. §351.216.
ISSUES:
Whether liquidation of the entries was extended pursuant to 19 U.S.C. §1504(b).
Whether the subject entries were “deemed liquidated” within the meaning of 19 U.S.C. §1504(d).
LAW AND ANALYSIS:
A protest against liquidation is provided by 19 U.S.C. 1514(a)(5). The protest is timely, as it was filed within 90 days of the date of liquidation.
In order for a protest to be effective, specific entries must be identified on the protest. The failure to list an entry on the protest is fatal under Lykes v. Pasco, 14 F.Supp. 2d 748, 22 C.I.T. 614 (C.I.T. 1998), aff’d Lykes v. Pasco, 185 F.3d 879 (Fed.Cir. 1998). Therefore, the protest against any entry other than the 17 listed entries is ineffective.
The port, on the CF6445A, contends that liquidation with dumping duties applied was required by message 1074203, dated March 15, 2001. The port states that it held the entries beyond the six-month period set by 19 U.S.C. 1504(d) because of the importer’s requests to Commerce for an exclusion order. Protestant contends that the subject entries should be liquidated without regard to the assessed dumping duties, pursuant to message 1288201, which stated that it applied to imports of Semivac 90 that were entered on or after October 2, 2001, and that entries of Semivac 90 that were unliquidated as of October 2, 2001, should be liquidated without regard to dumping duties and directed Customs to refund all cash deposits.
Generally, 19 U.S.C. 1504(a)(1) requires that entries be liquidated within one year of entry, unless an entry is extended under §1504(b), or suspended pursuant to a statute or court order. Subsection 1504(b) allows Customs to extend liquidation if the importer of record requests such extension and shows good cause therefor. Also, any entry granted an extension of liquidation under §1504(b) shall be treated as having been liquidated at the rate of duty, value, quantity, and amount of duty asserted at the time of entry by the importer of record at the expiration of four years from the date of entry. Finally, when a suspension required by statute or court order is removed, the Customs Service shall liquidate the entry, unless liquidation is extended, within six months after receiving notice of the removal from the Department of Commerce, other agency, or a court with jurisdiction over the entry. Any entry (other than an entry with respect to which liquidation has been extended) not liquidated by Customs within 6 months after receiving such notice shall be treated as having been liquidated at the rate of duty, value, quantity, and amount of duty asserted at the time of entry by the importer of record.
In this case, the entries were entered between June 4, 1999, and October 27, 1999, and liquidation of the entries was suspended upon entry. Customs received notice of the lifting of the suspension of liquidation on March 15, 2001, when Commerce sent liquidation instructions to Customs that directed Customs to liquidate the subject entries. At that point, the six-month period contained in §1504 began to run. Although Protestant has asserted that it requested an extension of liquidation on May 21, 2001, pursuant to its scope inquiry request, there is no evidence that the extension was actually granted. See Pagoda Trading Corporation v. U.S., 804 F.2d 665, 669 (1986) (failure to give notice of extension of liquidation is not a valid extension). A search of Customs’ ACS system reveals that the liquidation of entries was not extended by reason of Protestant’s request. While it is clear that Protestant requested a scope review under 19 C.F.R. §351.225, the notice of August 17, 2001, states that Commerce initiated a changed circumstances review under 19 C.F.R. §351.216. Whether such a review suspends liquidation, as asserted by Protestant is a matter to be determined by Commerce. In any event, no evidence of a notice to suspend liquidation pursuant to the Commerce action of August 17, 2001, was discovered.
Because liquidation of the entries was not extended pursuant to §1504(b), the unliquidated entries were deemed liquidated on September 15, 2001, at the rate of duty, value, quantity, and amount of duty asserted at the time of entry by the importer of record. In this case, the asserted antidumping duties were 21.34% on entries 004-XXXX484-7 and 004-XXXX126-1; 25.37% for entry 004-XXXX974-1; and 25.84% for the remaining 15 entries.
HOLDING:
This protest should be DENIED. Protestant has submitted no evidence that its extension request was granted, therefore the entries were deemed liquidated on September 15, 2001, six months after Customs received the March 15, 2001, liquidation instructions from Commerce.
In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act and other methods of public distribution.
Sincerely,
Myles Harmon
Acting Director,
Commercial Rulings Division