HQ 229413 - Protest No. 2704-01-101203; Application for Further Review; 19 U.S.C. § 1514; HQ 225382 (July 3, 1995); Mitsubishi Electronic America Inc. v. United States, 44 F.3d 973 (Fed. Cir. 1994); ABC International Traders, Inc. v. United States, 19 CIT 787, 791 (1995); American Hi-Fi International, Inc. v. United States, 936 F. Supp. 1032, 1037(Ct. Int’l Trade 1996); HQ 226285 (October 10, 1997); HQ 227653 (October 31, 1997) - United States International Trade Commision Rulings

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HQ 229413

May 13, 2002

LIQ-4-01 RR:CR:DR 229413 LLB

Category: LIQUIDATION PROTEST

U.S. Customs Service
301 East Ocean Boulevard
Long Beach, CA 90802
Attn: Gerald E. Rankin

RE: Protest No. 2704-01-101203; Application for Further Review; 19 U.S.C. § 1514; HQ 225382 (July 3, 1995); Mitsubishi Electronic America Inc. v. United States, 44 F.3d 973 (Fed. Cir. 1994); ABC International Traders, Inc. v. United States, 19 CIT 787, 791 (1995); American Hi-Fi International, Inc. v. United States, 936 F. Supp. 1032, 1037(Ct. Int’l Trade 1996); HQ 226285 (October 10, 1997); HQ 227653 (October 31, 1997)

Dear Mr. Rankin:

The above-referenced protest has been forwarded to this office for further review. We have considered the points raised by the protestant and your office. Our decision follows.

FACTS

The subject protest covers 91 entries of television receivers made between August 17, 1983 and February 27, 1985. According to the protestant, the subject merchandise was manufactured in Japan by NEC Home Electronics, Ltd. and imported by North America Philips Consumer Electronics (hereinafter “NAP”). The foregoing merchandise was the subject of an anti-dumping order issued by the Department of Treasury, U.S. Customs Service. 36 Fed. Reg. 4597 (March 10, 1971); T.D. 71-76.

Administration of the antidumping laws was not transferred to the Department of Commerce until 1979. See The Trade Agreements Act of 1979, Pub. L. No. 96-39, § 101, 93 Stat. 144, 169-70 (1979). According to the two representative entries submitted, antidumping duties were not deposited at the time of entry.

In 1986, liquidation of the entries continued to be suspended According to the Automated Commercial System (ACS) records, each of the entries were suspended within two months after they were filed. as Commerce initiated a review of television receivers for the period of April 1983 through February 1985. 51 Fed. Reg. 24883 (July 9, 1986). The final results found
the subject merchandise to have a net subsidy rate of 18.21% for the period of April 1, 1983 through March 31, 1984 and 7.37% for the period of April 1, 1984 through February 28, 1985. 54 Fed. Reg. 35517 (August 28, 1989). The protestant appealed Commerce’s final determination, which the Court of International Trade (CIT) denied. NEC Home Electronics, Ltd. v. United States, 18 C.I.T. 336(1994). The Federal Circuit, vacated the CIT’s decision, in part, and remanded the case with instructions to the CIT to remand the case to Commerce for further proceedings. NEC Home Electronics, Ltd. v. United States, 54 F.3d 736 (Fed. Cir. 1995). On January 23, 1997, Commerce issued instructions to Customs, pursuant to a preliminary injunction issued by the CIT, to suspend liquidation of entries made between April 1, 1983 and February 28, 1987. Accordingly, the CIT remanded the case to Commerce for a final redetermination of the dumping margins. NEC Home Electronics, Ltd. v. United States, 3 F. Supp. 2d 1451 (Ct. Int’l Trade 1998). The CIT sustained Commerce’s final redetermination, which found the net subsidy rate to be 2.20% for the period of April 1, 1983 through March 31, 1984, and 1.75% for the period of April 1, 1984 through February 28, 1985. NEC Home Electronics, Ltd. v. United States, 59 F. Supp. 2d 1337-38 (Fed. Cir. 1999).

On January 10, 2001, Commerce issued liquidation instructions to Customs for the subject merchandise entered between April 1, 1983 and March 31, 1984 and April 1, 1984 and March 31, 1985. On March 26, 2001, Commerce issued a correction to Customs indicating the latter period as April 1, 1984 through February 28, 1985. The instructions directed Customs to liquidate NAP’s imports for the foregoing periods at $27.68 and $18.33 per unit, respectively. Accordingly, on February 2, 2001, Customs liquidated the entries at the foregoing rates.

On May 2, 2001, the protestant filed its protest and application for further review arguing 1) that it is not liable for interest because no cash deposit was required at the time of entry and there was no effective antidumping order at the time of entry; 2) even if the assessment of interest was appropriate, it should not have been compounded; 3) the entries deemed liquidated because Commerce delayed issuing instructions to Customs; and 4) that assessment of antidumping duties on a per unit basis violated the CIT’s final order. We note that the protest is timely insofar as it was filed within 90 days of the February 2, and 9, 2001, liquidation dates. 19 U.S.C. § 1514(c)(3). Insofar as the first three issues are addressed in Fujitsu General America, Inc. et. al v. United States, 110 F. Supp. 2d 1061(Ct. Int’l Trade 2000), appeal argued, No. 01-1042 (Fed. Cir. October 4, 2001), it is the last argument for which your office requests further review.

ISSUE

Whether the issue presented is protestable

LAW AND ANALYSIS

The protestant argues that “assessment of antidumping duty based on a per unit basis violates the CIT’s final order.” Generally, we have held that the role of Customs in the antidumping process is “[s]imply to follow Commerce’s instructions in collecting deposits of estimated duties and in assessing antidumping duties, together with interest, at the time of liquidation.” HQ 225382 (July 3, 1995); Mitsubishi Electronic America Inc. v. United States, 44 F.3d 973 (Fed. Cir. 1994). However, if Customs fails to follow the instructions of the Department of Commerce, that failure may be subject to protest under 19 U.S.C. §1514. See, e.g., ABC International Traders, Inc. v. United States, 19 CIT 787, 791 (1995)( “... [c]laims [that Customs erroneously liquidated certain entries and failed to follow Commerce’s liquidation instructions] may be brought before the court under 28 U.S.C. §1581(a)(1988), after denial of protests by Customs.”); see also, American Hi-Fi International, Inc. v. United States, 936 F. Supp. 1032, 1037 (Ct. Int’l Trade 1996)([j]urisdiction for actions challenging Customs’ failure to follow Commerce’s actual liquidation instructions ... is found under 28 U.S.C. §1581(a).”).

In the instant case, there is no allegation that Customs failed to follow Commerce’s liquidation instructions. Instead the protestant challenges the actual instructions insofar as they instruct Customs to liquidate the entries on a per unit basis rather than the percentage rates established by the CIT. Based on the foregoing precedent, this issue is not protestable under 19 U.S.C. §1514. See HQ 226285 (October 10, 1997)(holding that protestant’s arguments addressing the assessment of double antidumping duties and penalties were not protestable inasmuch as they challenged the liquidation instructions, not Customs failure to follow the instructions); see also, HQ 227653 (October 31, 1997)(challenge to Commerce’s decision to suspend liquidation, not Customs’ failure to follow instructions). Therefore, the subject protest should be denied.

HOLDING

Inasmuch as the protestant challenges the actual liquidation instruction, not Customs failure to follow the instruction, the protestant has not presented a protestable issue under 19 U.S.C. § 1514(a). The subject 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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