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HQ 228878




July 31, 2001

PRO-2-02 RR:CR:DR 228878DR

CATEGORY: LIQUIDATION

Port Director of Customs
Attn: Angelina Cano-Questel
11099 S. La Cienga Blvd., Rm. 22155
Los Angeles, CA 90045

RE: Protest Application for Further Review No. 2720-00-100233; antidumping duties; liquidation instructions; 19 U.S.C. §1514; Mitsubishi Electronic America Inc. v. United States; ABC International Traders, Inc. v. United States; protestable matters.

Dear Ms. Cano-Qeustel:

The above-referenced protest was forwarded to our office for further review. Our decision follows.

FACTS:

This protest #2720-00-100233 is brought under 19 U.S.C. §1514 and is against the liquidation and assessment of antidumping duties on several entries of single in-line memory modules (SIMMs) containing Korean dynamic random access memory semiconductors (DRAMs). The DRAMs were produced by LG Semicon Co., Ltd., of Korea, or its predecessor company, Goldstar Electron Co., Ltd., of Korea (“Lucky Goldstar”), and the SIMMs were imported into the United States by importer AST Research, Inc. (“protestant”) between July 7, 1993, and May 3, 1995. The merchandise was classified under subheading 8473.30.4000, HTSUS (1993) and 8473.30.1000, HTSUS (1994).

According to the record before us, the Department of Commerce (Commerce) issued an Antidumping Duty Order and Amended Final Determination, dated May 10, 1993 (58 FR 27520). In that Order, Commerce assessed antidumping duties on all unliquidated entries of DRAM’s of one megabit or above from the Republic of Korea entered, or withdrawn from warehouse, for consumption on or before October 29, 1992, which was the date in which Commerce published its preliminary determination notice in the Federal Register. See 57 FR 49006. The Order also stated that for subject merchandise entered on or after May 10, 1993, Commerce would direct Customs to assess the following cash deposit rates for the subject DRAMs:

Manufacturer/producer/exporter
Margin percentage
Goldstar Electron Co., Ltd
4.97% ad valorem
Hyundai Electronics Co., Ltd.
11.16%
Samsung Semiconductor Co., Ltd.
0.82%
All Others
3.85%

Subsequently, on May 25, 1993, Commerce issued instructions to Customs in which it directed Customs to continue to suspend liquidation of DRAMs of 1 megabit and above from the Republic of Korea that were entered or withdrawn from warehouse for consumption on or before October 29, 1992, and require a cash deposit on entries filed on or after May 10, 1993. The cash deposit rates were dependent on certain conditions. First, unless the importer of the memory modules certified that the imported memory modules contained no Korean DRAMs, or DRAMs made elsewhere that contain processed wafers, uncut die or cut die of Korean origin, then Customs was required to assess a per megabit deposit on the amount of Korean megabits within the module dependent on the manufacturer of DRAMs contained in the module. If that occurred, the importer was also required to submit a list identifying: (1) the amount of Korean megabits contained in the module; (2) the names of the various Korean DRAM manufacturers which produced the megabits contained in the module; and (3) the amount of Korean megabits contained in the module which were produced by each of those Korean DRAM manufacturers.

The message further stated that if the importer was unable or unwilling to identify the amount of megabits produced by the various Korean DRAM manufacturers within the module, but could identify the total amount of Korean megabits within the module, the highest per megabit deposit calculated for any company in “Item 10” of the message would be applied to all Korean megabits contained in the module. If the importer was unable or unwilling to identify the total amount of Korean megabits within the module, including modules containing megabits with mixed countries of origin, the highest percentage margin calculated for any Korean DRAM manufacturer listed in “Item 9” of the message would be applied to the total entered value of the module.

For clarity, the deposit rates for the various manufacturers/producers/exporters of the Korean DRAMs are summarized below:

ITEM 9

Manufacturers/producers/
exporters

Margin %
(ad valorem)
Goldstar Electron Co., Ltd./
Goldstar Electron America
A-580-812-001
4.97%
[Manufacturer 2]/[Exporter 2]
A-580-812-002
11.16%
[Manufacturer 3]/[Exporter 3]
A-580-812-003
0.82%
All Others
A-580-812-000
3.85%

ITEM 10

Manufacturers/producers/ exporters

Per-megabit ($US)
Goldstar Electron Co., Ltd./
Goldstar Electron America
A-580-812-001 $0.17
[Manufacturer 2]/[Exporter 2]
A-580-812-002 $0.31
[Manufacturer 3]/[Exporter 3]
A-580-812-003 $0.03
All Others
A-580-812-000 $0.12

As stated above, Protestant imported the subject merchandise after the publication of the Order and issuance of liquidation instructions. Customs subjected the entries to various cash deposit rates, depending on the stated manufacturers, origins of the merchandise, and associated antidumping duty case numbers.

On September 11, 1995, Commerce published a Notice of Preliminary Results of Antidumping Duty Administrative Review of the Order for the period October 30, 1992 through April 30, 1994 (“Preliminary Results 1”). See 60 FR 47149. In Preliminary Results 1, Commerce preliminarily determined that the following margins existed for the period of review, and stated that it would issue appraisement instructions for each exporter directly to Customs upon completion of the review:

Manufacturer/exporter
Margin percentage
Goldstar Electron Co., Ltd
0.319% (de minimis)
Hyundai Electronics Co., Ltd.
0.202% (de minimis)
Samsung Semiconductor Co., Ltd.
0.9936% (de minimis)

On May 6, 1996, Commerce published a Notice of Final Results of Antidumping Duty Administrative Review of the Order for the period October 30, 1992 through April 30, 1994 (“Final Results 1”). See 61 FR 20216. In Final Results 1, DRAM’s manufactured by LG Semicon (formerly Goldstar Electron Co., Ltd.) were assessed a margin of 0.00% ad valorem, and those manufactured by Hyundai Electronic Industries, Inc., were assessed at 0.06% ad valorem.

On July 9, 1996, Commerce published a Notice of Preliminary Results of Antidumping Duty Administrative Review of the Order for the review period May 1, 1994, through April 30, 1995 (“Preliminary Results 2”). See 61 FR 36029. It determined that the following margins existed:

Manufacturer/exporter
Margin percentage
LG Semicon (formerly Goldstar Electron Co., Ltd.) 0.0%
Hyundai Electronics Co., Ltd.
0.0%

The notice added that Commerce would issue appraisement instructions directly to Customs, and “the final results of this review shall be the basis for the assessment of antidumping duties on entries of merchandise covered by the determination.”

On January 7, 1997, Commerce published a Notice of Final Results of Antidumping Duty Administrative Review of the Order for the period May 1, 1994, through April 30, 1995 (“Final Results 2”). See 62 FR 965. In Final Results 2, DRAM’s manufactured by LG Semicon were assessed margins of 0.01% ad valorem, and those manufactured by Hyundai Electronic Industries, Inc., were assessed at 0.10% ad valorem. The notice also stated that Commerce would issue appraisement instructions directly to Customs, and “the final results of this review shall be the basis for the assessment of antidumping duties on entries of merchandise covered by the determination.”

On November 11, 1999, Commerce issued liquidation instructions for both periods of review. See MSG 9305212 (first period), MSG 9305211 (second period). In MSG 9305212, Commerce instructed Customs as follows:

For those entries of (DRAM’s) of one megabit and above from Korea which required a cash deposit or bond based upon an ad valorem rate, produced by Goldstar Electron Co., Ltd., and imported by the following importers, entered or withdrawn from warehouse for consumption during the period 10/29/1992 through 5/30/1994, assess an antidumping liability of the following percentages of weighted value:

Importer
Percentage
Goldstar Electron America, Inc.
0.01%
[Importer 2]
0.00%
[Importer 3]
0.00%

For those entries of (DRAM’s) of one megabit and above from Korea which required a cash deposit or bond based upon an per megabit rates, produced by Goldstar Electron Co., Ltd., and imported by the following importers, entered or withdrawn from warehouse for consumption during the period 10/29/1992 through 4/30/1994, assess an antidumping liability of the following percentages of weighted value:

Importer
Per megabit rate
Goldstar Electron America, Inc. $0.00
[Importer 2] $0.00
[Importer 3] $0.00

Liquidate all other entries entered or withdrawn from warehouse for consumption during the period 10/29/92 through 4/30/1994 by all other importers at the rates required upon entry.

These instructions constitute the immediate lifting of suspension of liquidation of entries for the merchandise and period listed above.

In MSG 9305211, Commerce instructed Customs as follows:

For those entries of (DRAM’s) of one megabit and above from Korea which required a cash deposit or bond based upon an ad valorem rate, produced by LG Semicon Co., Ltd., and imported by LG Semicon America, Inc., entered or withdrawn from warehouse for consumption during the period 5/1/1994 through 4/30/1995, assess an antidumping liability of .03 percent of the weighted value.

For those entries of (DRAM’s) of one megabit and above from Korea which required a cash deposit or bond based upon per megabit rates, produced by LG Semicon Co., Ltd., and imported by LG Semicon America, Inc., entered or withdrawn from warehouse for consumption during the period 5/1/1994 through 4/30/1995, assess an antidumping liability of $0.00 per megabit.

Liquidate all other entries entered or withdrawn from warehouse for consumption during the period 5/1/94 through 4/30/1995 by all other importers at the rates required upon entry.

These instructions constitute the immediate lifting of suspension of liquidation of entries for the merchandise and period listed above.

Both liquidation instructions required Customs to assess interest on underpayments of the required amounts deposited as estimated antidumping duties. The interest provisions did not apply to cash or bonds posted before the date of publication of the antidumping duty order (May 10, 1993). Customs laboratory investigation under electron beam microscope revealed that many of the subject entries by protestant of SIMMs containing DRAMs marked as manufactured by Hitachi Korea, Motorola Korea, Siemens Korea, and Texas Instruments Korea, actually contained DRAMs manufactured by Lucky Goldstar. Those entries were then rate advanced due to the changes in the antidumping case numbers and cash deposit rates associated with the changed manufacturers. Customs liquidated the subject entries within 90 days of receiving the instructions, at the rates dependent upon the manufacturers and importers of the DRAMs.

Two entries contained merchandise that was assessed the per megabit rate for Lucky Goldstar DRAMs but which was changed to the ad valorem rate, and one entry contained merchandise that was assessed the ad valorem rate for Lucky Goldstar DRAMs but which was changed to the per megabit rate. Also, one entry was not made within the periods of the administrative reviews and is thus not considered a part of this protest.

ISSUE:

Whether Customs correctly applied the liquidation instructions as concerns those entries subject to the antidumping duty Order and results of administrative reviews conducted by Commerce.

LAW AND ANALYSIS:

The subject entries were liquidated on February 18 and 25, 2000, with antidumping duties and interest being assessed. On May 17, 2000, the protest was timely filed within 90 days of the liquidation dates. As provided for in 19 U.S.C. §1514, (with certain exceptions not applicable in this matter) certain listed decisions, including the legality of all orders and findings entering into the same, of the Customs Service are final and conclusive on all persons unless a protest is filed in accordance with §1514, or unless a civil action contesting the denial of a protest, in whole or in part, is commenced in the United States Court of International Trade in accordance with chapter 169 of Title 28, United States Code. Thus, a protest must be based on, or in response to, a decision made by the Customs Service. Such decisions include, among others, the liquidation or reliquidation of an entry, or reconciliation as to the issues contained therein, or any modification thereof. 19 U.S.C. §1514(a)(5); see also 19 C.F.R. 174.11.

Protestant argues that the liquidations by Customs were erroneous because the liquidation instructions issued by Commerce are contrary to the findings and margins determined to exist by Commerce, and which were published in the final results of the administrative reviews. Protestant also argues that the instructions violate 19 U.S.C. §1675(a)(2)(C), the notice provisions of 19 U.S.C. §1675(a)(1), as well as the Administrative Procedure Act and the Due Process Clause. However, the allegations by protestant concern decisions and actions of Commerce, not Customs, and fail to otherwise illustrate how the criteria for filing the protest have been met.

First, protestant relies on ABC International Traders, Inc. v. United States, 19 CIT 787, 1995 Ct. Intl. Trade LEXIS 136, Slip Op. 95-97 (May 23, 1995), asserting that importers of merchandise subject to antidumping duty order are to have their entries liquidated at the manufacturer’s antidumping rate if the manufacturer participated in the administrative review covering the period of those entries. However, such reliance is misguided because protest jurisdiction under §1514 for Customs decisions was never at issue in that case. Instead, the case essentially concerned the jurisdiction of the CIT under 28 U.S.C. §1581 to review decisions by Commerce to assess antidumping duties, and not the role of Customs in collecting those duties. We note that under the applicable statutes, Commerce, not Customs, has the authority to calculate and determine antidumping duties. See 19 U.S.C. §§1671, 1671a.

Generally, we have held that the role of Customs in the antidumping process is “... simply to follow Commerce’s instructions in collecting deposits of estimated duties and in assessing antidumping duties, together with interest, at the time of liquidation.” See HQ 225382, July 3, 1995; see also Mitsubishi Electronic America Inc. v. United States, 44 F.3d 973, 976, 977 (Fed. Cir. 1994) (“Section 1514(a) applies exclusively to Customs ‘decisions’ within the enumerated categories [and it] expressly refers to ‘decisions of the Customs service.’ Section 1514(a) does not embrace decisions by other agencies Customs has a mere ministerial role in liquidating antidumping duties under 19 U.S.C. 1514(a)(5). Customs cannot ‘modify [Commerce’s] determinations, their underlying facts, or their enforcement.’”). However, if Customs fails to follow the instructions of Commerce, that failure may be subject to protest under 19 U.S.C. §1514. See, e.g., ABC International Traders (“... claims [that Customs erroneously liquidated certain entries and failed to follow Commerce’s liquidation instructions] may be brought before the [CIT] under 28 U.S.C. §1581(a)(1988), after denial of protests by Customs.”) (emphasis added); see also, in this regard, American Hi-Fi International, Inc., v. United States, 936 F. Supp. 1032, 20 CIT 910 (August 2, 1996) (“[j]urisdiction for actions challenging Customs’ failure to follow Commerce’s actual liquidation instructions ... is found under 28 U.S.C. §1581(a).”).

Here, Commerce issued an antidumping order that subjected all imports of the subject merchandise entered after May 10, 1993, to a cash deposit, based upon its manufacturer, to be collected by Customs. On May 25, 1993, Commerce then issued instructions to Customs that contained the conditions that were determinative of the applicable rate. The modules in dispute here were entered between July 7, 1993, and December 19, 1994, and were identified by protestant as containing DRAMs manufactured by Hitachi Korea, Motorola Korea, Siemens Korea, and Texas Instruments Korea, instead of Lucky Goldstar. They were assessed the applicable deposit rates, i.e., the “all other” rate published in the Order ($0.12 per megabit or 3.85% ad valorem). Commerce then issued the final results of the administrative reviews and lowered the margins to 0.00% and 0.01% for the two periods of entry for DRAMs manufactured by Lucky Goldstar. However, the liquidation instructions issued to Customs limited those lowered rates to entries made by certain importers, which did not include protestant. Therefore, Customs was required, per Commerce’s instructions, to liquidate protestant’s entries at the rates required upon entry, which were found in the Order dated May 10, 1993, i.e., the “all other” rates. Indeed, protestant admits as much, stating, “Upon liquidation, however, Customs raised the [margins published in the final results of the administrative reviews] to 4.97% ad valorem. The Customs liquidation was based on liquidation instructions issued by [Commerce] to Customs dated November 1, 1999 (message numbers 9305212 and 9305211).” Customs followed Commerce’s liquidation instructions by liquidating the merchandise on February 18 and 25, 2000, with antidumping rates assessed according to the stated manufacturers of the DRAMs contained therein. Here, they were assessed $0.17 per megabit or 4.97% ad valorem when they were discovered to be manufactured by Lucky Goldstar.

As illustrated above, each assessment of the applicable cash deposit rates and resultant liquidation was performed by Customs as determined and directed by Commerce. There is no allegation that Customs failed to follow the liquidation instructions issued by Commerce. Instead, the protest appears to obliquely challenge the content and issuance of the instructions themselves, which are not protestable matters for Customs to address. See Sandvik Steel Co. v. United States, and Fujitsu Ten Corp. of America v. United States, 164 F.3d 596 (Fed. Cir. 1998). Therefore, this protest should be denied.

HOLDING:

For the reasons stated above, this protest should be DENIED.

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 mailing of the 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,

John Durant,
Director
Commercial Rulings Division

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