United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 1997 HQ Rulings > HQ 226417 - HQ 227026 > HQ 226417

Previous Ruling Next Ruling
HQ 226417





February 13, 1997

LIQ-4-01-RR:IT:EC 226417 AJS

CATEGORY: LIQUIDATION

Port Director of Customs
U.S. Customs Service
4430 East Adamo Drive
Tampa, FL 33605

RE: Timely liquidation of antidumping duties; 19 U.S.C. 1504; Dart Export Corp. v. U.S.; HQ 224162; laches; equitable estoppel; Pasco Terminals, Inc. v. U.S.

Dear Sir or Madame:

This is in reply to your correspondences concerning protest 1801-79-000005, dated March 16, 1979, which we received on September 5, 1995, concerning the application of antidumping duties.

FACTS:

The protestant provided the following chronology of events. On April 6, 1971, Customs published in the Federal Register (36 Fed. Reg. 6526) an Antidumping Proceeding Notice on elemental sulfur (i.e., the subject merchandise) from Mexico.

On November 6, 1971, Customs published in the Federal Register (36 Fed. Reg. 21364) a Withholding of Appraisement Notice.

On February 5, 1972, the Department of Treasury published in the Federal Register (37 Fed. Reg. 2793) a determination, dated February 3, 1972, that "elemental sulfur from Mexico is being, or is likely to be, sold at less than fair value . . ."

On May 4, 1972, the U.S. Tariff Commission (USTC) notified the Secretary of Treasury "that an industry in the United States is being injured by reason of imports from Mexico of sulphur sold or likely to be sold at less than fair value."

On May 10, 1972, the USTC published in the Federal Register (37 Fed. Reg. 9417) its opinion determining injury.

On June 28, 1972, the Secretary of the Treasury published in the Federal Register (37 Fed. Reg. 12727) a notice making public a finding of dumping with respect to elemental sulfur from Mexico.

The protest at issue involves three entries. Entry 1 was entered on November 30, 1971, entry 2 was entered on January 27, 1972, and entry 3 was entered on February 8, 1972. All three entries were liquidated on February 23, 1979.

ISSUE:

Whether the subject entries were timely liquidated.

LAW AND ANALYSIS:

Initially, we note that the subject protest was timely filed in 1979 pursuant to 19 U.S.C. 1514(b)(2) (1979). The date of decision as to which protest is made was February 23, 1979, and the date of this protest is March 16, 1979. We also note that the liquidation of an entry was protestable pursuant to 19 U.S.C. 1514(a)(5) (1979). We additionally note that section 1514 was amended concerning issues not related to the filing deadline of or the subject matter of protests. See Pub. L. 96-39, Title X, section 1001(b)(3), 93 Stat. 305 (July 26, 1979). The effective date of these amendments was January 1, 1980. Id. at sect. 1002. These amendments to section 1514 do not apply with respect to any protest filed before January 1, 1980. Id. at sect. 1002(b)(1)(A). Therefore, these amendments do not apply to the subject protest because it was filed on March 16, 1979.

Liquidation has been defined as "the final computation by the Customs Service of all duties (including any antidumping or countervailing duties) accruing on that entry." American Permac, Inc. v. United States, 10 CIT 535, 537 (1986). The Customs Procedural Reform and Simplification Act of 1978 (the Act) provides in section 209(a), 19 U.S.C. 1504, that an entry is deemed liquidated as entered if Customs has not liquidated the entry within one year from the date or withdrawal from warehouse. The Act was effective as to entries or withdrawals for consumption on or after 180 days after the enactment of the Act (i.e., October 3, 1978). Thus, only entries or withdrawals made on or after April 1, 1979, were covered by the Act.

Previous to the Act, there was no time limit for the liquidation of an entry. Dart Export Corp. et al. v. United States, 43 CCPA 64, C.A.D. 610 (1956), cert. denied, 352 U.S. 824, 77 S. Ct. 33, 1 L. Ed. 2d 48 (1956). The Court in Dart Export stated that the law prescribed no time limit within which the collector shall make the original liquidation. This conclusion is supported by the legislative history of the Act. In the statement of Reason for Change contained in S. Rep. No. 95-788 at 832, it is stated:

Reason for change.-- The provision adopted by the committee [section 209] would increase certainty in the customs process for importers, surety companies, and other third parties with a potential liability relating to a customs transaction. Under the present law, an importer may learn years after goods have been imported and sold that additional duties are due, or may have deposited more money for estimated duties than are actually due but be unable to recover the excess for years as he awaits liquidation . . .

The entries at issue were made in 1971 and 1972. As stated above, the time constraints provided for under 19 U.S.C. 1504 only apply to entries made on or after April 1, 1979. Therefore, the subject entries were not deemed liquidated by operation of law. See HQ 224162 (May 5, 1993) for a similar discussion of this issue.

We also note that neither the doctrine of laches nor equitable estoppel are available to the protestant. "As a general rule, laches or neglect of duty on the part of officers of the Government is no defense to a suit by it to enforce a public right or protect a public interest." Utah Power & Light Co. v. United States, 243 U.S. 389, 37 S. Ct. 387, 61 L. Ed. 791 (1917). In the instant case, the public interest required to be protected consisted of the revenue of the United States. Additionally, the Court of Customs and Appeals held that equitable estoppel is not available against the Government in cases involving collection or refund of duties on imports. See Air-Sea Brokers, Inc. v. United States, 596 F. 2d 1088, 66 CCPA 64 (1979).

The protestant claims that there is no federal statute that expressly states the time within which the United States must undertake to collect a dumping duty after the cause of action accrued -- that is, after the entry is made or the dumping finding is published, whichever is later. Consequently, the protestant asserts that state law is controlling under such circumstances and cites to 2 Moore's Federal Practice 3.07[2] for this proposition. The premise of the protestant's claim is incorrect. The federal statute which governs the collection of dumping duties as well as other duties is the Tariff Act of 1930. At the time in question, under the Tariff Act of 1930, there was no provision in the statute setting forth a time limit for liquidation. See Dart Export infra. This, it is a fallacy to infer that because a federal statute which governs an issue does not expressly contain a time limit for action to be taken, that thus no federal statute governs the issue. We note that the Dart Export case was denied certiorari in the Supreme Court and thus the issue of time limit for liquidation would appear to be settled law. Therefore, the protestant's assertion regarding state law is not relevant in the disposition of the subject protest.

The protestant raises three issues regarding actions of the USTC. The protestant states that these were the precise issues then being litigated in Pasco Terminals, Inc. v. U.S., Court No. 74-5-01357. These issues are whether the USTC failed to follow its own Rules of Practice and Procedure in its injury investigation; whether the USTC abused its discretion in denying cross-examination of crucial evidence in conducting its injury investigation; and whether the USTC
failed to consider critical evidence on the operation of the Tampa sulfur market in its injury determination. The Customs Court ruled against the protestant in summary judgement on all three of these issues in 83 Customs Court 65, C.D. 4823 (1979). Furthermore, all three of these issues involved the injury determination conducted by the USTC under 19 U.S.C. 160 and 19 CFR Parts 201 and 207 and its Rules of Practice and Procedure, and not any decision of a customs officer protestable pursuant to 19 U.S.C. 1514(a). Therefore, these injury issues are not protestable matters under the authority of the Customs Service pursuant to 19 U.S.C. 1514.

We note that 19 U.S.C. 160 was repealed effective January 1, 1980. Pub. L. 96-39, sect. 106(a) and sect. 107 supra. Notwithstanding this repeal, the law in effect on the date of any finding or determination contested in any protest shall be applied for purposes of that action. Id. at sect. 1002(b)(2). The determination contested in the subject protest was the liquidation of the entries in question on February 23, 1979. Therefore, 19 U.S.C. 160 and the above cited provisions administered by the USTC were in effect on February 23, 1979, and would be applicable to the subject protest. As discussed previously, the issues in these provisions were not protestable pursuant to 19 U.S.C. 1514 on February 23, 1979. Consequently, the repeal of 19 U.S.C. 160 does not effect the protestability of issues under that section and the above cited provisions administered by the USTC under section 1514.

HOLDING:

The protest is denied. The subject entries were properly liquidated by Customs on February 23, 1979. The subject entries did not liquidate by operation of law because the entries were made prior to the effective date of 19 U.S.C. 1504.

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, with the Customs Form 19, 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 the making of this decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

Director,


Previous Ruling Next Ruling