HQ 229286 - Protest No. 3901-00-101009 and Application for Further Review; scope of antidumping duty order; 19 U.S.C. §1504(d); “deemed liquidation”; liquidation instructions; Bar Bea Truck Leasing Co., Inc. v. United States; American Permac, Inc. v. United States; Rheem Metalurgica S/A v. United States; - United States International Trade Commision Rulings

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HQ 229286

September 27, 2002

LIQ-4-01-LIQ-11-RR:CR:DR 229286DR

Port Director of Customs
Attn: Robert Lehman, Assistant Port Director 610 S. Canal Street
Chicago, IL 60607

RE: Protest No. 3901-00-101009 and Application for Further Review; scope of antidumping duty order; 19 U.S.C. §1504(d); “deemed liquidation”; liquidation instructions; Bar Bea Truck Leasing Co., Inc. v. United States; American Permac, Inc. v. United States; Rheem Metalurgica S/A v. United States;

Dear Mr. Lehman:

The above referenced protest and application for further review was forwarded to this office for a determination. We have considered the points raised and a decision follows.

FACTS:

This protest involves television receivers from Japan entered on January 6, 1987. Entry No. 509-XXXXX14-6. A copy of the Entry Summary and associated entry documentation was included in the file. The Entry Summary describes the merchandise as “Color TV’s, 14 inches,” and it was classified under subheading 684.9253, TSUS, covering “television receivers and parts thereof: having a picture tube: complete television receivers.” The merchandise was described on the accompanying entry documentation as “14 inch colour TV receiver[s].” See Import Invoice and Packing List. Merchandise classified under subheading 684.9243, TSUSA, was the subject of an antidumping duty order concerning television receiving sets from Japan. See 36 Fed.Reg. 4597 (March 10, 1971). The Entry Summary also shows that Protestant did not cite any antidumping duty investigation number on the entry documents, nor did it assert that any antidumping duties were owed upon entry. Protestant placed a bond on the imports, and liquidation was suspended.

On November 20, 1987, Commerce published a Notice of Initiation of Antidumping Duty Administrative Review For Television Receivers, Monochrome And Color, From Japan, and entered by Protestant (then known as the Victor Company of Japan (“Victor”)). See 52 Fed.Reg. 44621. On April 6, 1989, Commerce published the Notice of Final Results of Antidumping Duty Administrative Review (“Final Results”). 54 Fed.Reg. 13917 (April 6, 1989). In that publication, Commerce determined that the merchandise entered by Protestant during the period April 1, 1981, through February 29, 1988, was subject to a dumping margin of 19.24%. The scope of the Final Results included “shipments of television receiving sets, monochrome and color, and include but are not limited to projection televisions, receiver monitors, and kits (containing all the parts necessary to receive a broadcast television signal and produce a video image). Not included are certain monitors not capable of receiving a broadcast signal, certain combination units, and certain subassemblies not containing the components essential for receiving a broadcast television signal and producing a video image.” Commerce also stated that it would instruct Customs to assess antidumping duties on those entries, and would issue appraisement instructions directly to Customs.

On December 27, 2000, Customs received liquidation instructions from Commerce. The instructions stated that the entry was to be liquidated with antidumping duties of 19.24% assessed, and the instructions “constituted the immediate lifting of suspension of liquidation of entries for the merchandise” We were informed by the port that the handwritten annotations on the Entry Summary and entry documentation were done by Customs officers. The Entry Summary shows that Protestant did not cite any antidumping duty investigation number on the entry documents, nor did it assert that any antidumping duties were owed upon entry. The handwritten notations on the Entry Summary concerning antidumping duty investigation A-588-015-014, and antidumping duties of 19.24%, were made by Customs. Customs liquidated the subject entry on March 2, 2001, with interest of assessed from 1987 . Protestant filed this protest on May 31, 2001.

Protestant now protests and request further review on “the classification and assessment of antidumping duties on articles described as television receivers on the invoices covered by the subject entry.” See Protest Attachment, Page 2. Protestant claims that “all or part of the merchandise, against which antidumping duties was [sic] assessed, is not within the scope of the antidumping duty order,” and states that it is “reviewing all other articles subject to antidumping duties on liquidation and classified under Item 684.92, TSUS, and, will provide documentation to Customs to demonstrate the incorrect assessment if the article does not have the required receiver functions.” Protest Attachment, Pages 2 and 4. Protestant also challenges the timeliness of Customs’ liquidation of the entry, asserting that the entry should have been “deemed liquidated” upon the four year anniversary of entry.

ISSUES:

Whether the merchandise falls within the scope of the antidumping duty order.

Whether the entry of the merchandise was “deemed liquidated” within the meaning of 19 U.S.C. §1504(d) (1984).

LAW AND ANALYSIS:

First, we note that the protest was filed in a timely manner. The entry was liquidated on March 2, 2001, and the protest was filed on May 31, 2001. See 19 U.S.C. 1514(c)(3) (requiring that the protest of a decision regarding the liquidation of an entry be filed within 90 days after notice of liquidation or reliquidation).

The scope of the antidumping duty order

As stated above, Protestant claims that “all or part of the merchandise, against which antidumping duties was [sic] assessed, is not within the scope of the antidumping duty order,” and states that it is “reviewing all other articles subject to antidumping duties on liquidation and classified under Item 684.92, TSUS, and, will provide documentation to Customs to demonstrate the incorrect assessment if the article does not have the required receiver functions.” Protest Attachment, Pages 2 and 4. However, we view this challenge as “conditional” because counsel asserts that television receiver monitors fall under the same TSUS item number as television receivers, yet states that it is “reviewing all other articles subject to antidumping duties on liquidation and classified under Item 684.92, TSUS, and, will provide documentation to Customs to demonstrate the incorrect assessment if the article does not have the required receiver functions.” This indicates that Protestant will eventually submit documentary evidence in support of its claim. The Customs Service has and will continue to fully consider any relevant allegation in a protest supported by competent evidence, but the Court of International Trade (CIT) has ruled that mere assertions by a complainant without supporting evidence will not be regarded as sufficient to overturn a Customs official's decision. Bar Bea Truck Leasing Co., Inc. v. United States, 5 C.I.T. 124, 126 (1983). Here, Protestant has simply asserted that the merchandise was classified incorrectly, but has failed to present any evidence in support of that assertion. And without such evidence, we cannot rule that the merchandise was classified incorrectly or may have been outside of the scope of the antidumping duty order.

Deemed liquidation

Protestant also claims that the entries were liquidated by operation of law pursuant to 19 U.S.C. §1504(d). The statute principally at issue in this matter is 19 U.S.C. §1504 (1984), which states in relevant part:

(a) Liquidation

Except as provided in subsection (b) of this section, an entry of merchandise not liquidated within one year from:

(1) the date of entry of such merchandise; ... shall be deemed liquidated at the rate of duty, value, quantity, and amount of duties asserted at the time of entry by the importer of record. ...

(b) Extension

The Secretary may extend the period in which to liquidate an entry by giving notice of such extension to the importer of record in such form and manner as the Secretary shall prescribe in regulations, if liquidation is suspended as required by statute or court order; ....

....

(d) Limitation

Any entry of merchandise not liquidated at the expiration of four years from the [date of entry of such merchandise], shall be deemed liquidated at the rate of duty, value, quantity, and amount of duty asserted at the time of entry by the importer of record, unless liquidation continues to be suspended as required by statute or court order. When such a suspension of liquidation is removed, the entry shall be liquidated within 90 days therefrom.

Thus, in order to determine the date on which suspension was removed, one must first determine the date on which that removal was effected. The courts have considered that issue, and in International Trading Co. v. United States, 110 F. Supp. 2d 977, 982 (C.I.T. 2000), the Court of International Trade (“C.I.T.”) recognized that the courts have “consistently held that suspension is removed upon publication of the Final Results in the Federal Register.” (citing to American Permac, Inc. v. United States, 642 F. Supp. 1187, 10 C.I.T. 535 (1986); American Permac, Inc. v. United States, 800 F. Supp. 952, 16 C.I.T. 672 (1992); Rheem Metalurgica S/A v. United States, 951 F. Supp. 241, 20 C.I.T. at 1450 (1996)).

Here, liquidation of the subject entries was suspended pursuant to 19 U.S.C. 1675(a)(1) at the initiation of the administrative review. The Final Results of that review were published on April 16, 1989, and the suspension was lifted on that date. However, the four year anniversary of the entry dates passed in 1991, with Customs failing to liquidate. Therefore, under 19 U.S.C. §1504(d) (1984), the entries were “deemed liquidated” at the rate of duty, value, quantity, and amount of duty asserted at the time of entry by the importer of record, which in this case included no antidumping duties.

With regard to the assessment of interest on underpaid antidumping duties, under 19 U.S.C. §1677g(a), interest shall be payable on overpayments or underpayments of amounts deposited on merchandise entered, or withdrawn from warehouse, for consumption on and after the date of publication of a countervailing or antidumping order or the date of a finding under the Antidumping Act, 1921 (represented by the difference between any required cash deposit of estimated antidumping duties and the final amount of assessed duties on the date of liquidation). However, under Rheem, “[19 U.S.C. §1504(d)] clearly states that entries liquidated by operation of law are liquidated at ‘the rate of duty, value, quantity, and amount of duty asserted at the time of entry by the importer.’” Id. at 250, 20 C.I.T. at 1462. “The meaning of ‘asserted’ in § 1504(d) . . . means that which is claimed and indicated by the importer, his consignee or agent on the entry summary or warehouse withdrawal." Id. at 249, citing Customs Regulations, Relating to the Entry of Merchandise, Liquidation of Entries, Warehousing Periods, and Marking of Bulk Containers of Alcoholic Beverages, Amended, 44 Fed. Reg. 46,794, 46,809 (August 9, 1979). Also, under Timken Co. v. United States, 809 F.Supp. 121, 16 C.I.T. 999 (1992), aff’d. 37 F.3d 1470 (1994), interest is not collectable on bonds posted by importers to cover estimated antidumping duties.

Here, there was no assertion of dumping liability by the importer on the entry and, by operation of 19 U.S.C. 1504(d) (1984), no additional amount was due upon liquidation, or in this case, upon “deemed liquidation” of the entries. Therefore, no antidumping duties should have been assessed and Protestant is not liable for interest under 19 U.S.C. §1677g since there were no “underpayments” of estimated antidumping duties.

HOLDING:

This protest should be DENIED IN PART, and GRANTED IN PART. Protestant has failed to present evidence in support of its claim that the subject merchandise was not within the scope of the antidumping duty order, and that portion of the protest should be DENIED. However, under 19 U.S.C. 1504(d) (1984), because the suspension of liquidation was removed prior to the four-year anniversary of the dates of entry, the entries are deemed liquidated at the rates of duty asserted by Protestant at the times of their entries. Therefore, the portion of the protest regarding “deemed liquidation” should be GRANTED.

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,

Myles Harmon
Acting Director,
Commercial Rulings Division

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