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HQ 229510





September 27, 2002

LIQ-4-01-LIQ-4-02-LIQ-11-RR:CR:DR 229510 DR

Janet Foster
US Customs Service
2d & Chestnut Street
Philadelphia, PA 19106

RE: Protest No. 1101-01-100228 and Application for Further Review; 19 U.S.C. §1504(d); 19 U.S.C. §1677g; “deemed liquidation”; liquidation instructions; Fujitsu General America, Inc. v. United States

Dear Ms. Foster:

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:

The subject protest covers four entries of tapered roller bearings and parts thereof, manufactured in the People’s Republic of China. The entries occurred on July 2, 1990, August 4, 1990, August 16, 1990, and August 24, 1990. The merchandise was manufactured and exported by Premier Bearing and Equipment, Ltd., N.T., Hong Kong (“Premier”), and by Jilin Province Machinery Import & Export Corporation, Changchun, China (“Jilin”), and imported by Universal Automotive Company, Ltd., of Nassau, Bahamas.

According to the record before us, the merchandise was the subject of an antidumping duty order concerning antidumping case number A-570-601. At entry, Protestant’s broker indicated the appropriate case number on the Entry Summaries, and antidumping duties of 0.97% ad valorem, or 2.96% ad valorem, were deposited, depending on the manufacturer/exporter of the merchandise.

On September 18, 1991, the Department of Commerce (“Commerce”) initiated an administrative review of the antidumping duty order covering the subject merchandise and the period of entry. See 56 Fed.Reg. 47185. On December 13, 1996, Commerce published the Final Results of the administrative review, and determined that a margin of 4.24% ad valorem existed for merchandise manufactured/exported by Premier and Jilin during the relevant period. See 61 Fed.Reg. 65527.

The Peer Bearing Company and the Timken Company contested the Department's decision in the Final Results. In issuing its decision in this case, the United States Court of International Trade (CIT) instructed the Department to make the following changes to its margin calculations for the Final Results: (1) change the best-information-available (BIA) rate for Chin Jun Industrial, Ltd. (Chin Jun), (2) correct a clerical error in the calculation of inland freight, (3) recalculate marine insurance expense on a value, rather than weight, basis, and (4) recalculate the exporter's-sales-price (ESP) offset of foreign market value (FMV). See Peer Bearing Company v. United States, 12 F. Supp. 2d 445, 22 Ct. Int'l Trade 472, (C.I.T. May 27, 1998). The Department issued final results of redetermination on remand on August 26, 1998, and the CIT affirmed the Department's final remand results. See Peer Bearing Company v. United States, 22 C.I.T. 1100, Slip Op. 98-161 (C.I.T. December 7, 1998), aff'd mem., sub nom. The Timken Co. v. United States, 217 F.3d 854 (Fed. Cir. 1999).

On August 8, 2000, Commerce published notice of the C.I.T.’s decision and stated that it was amending the Final Results and would instruct Customs to liquidate entries subject to the review at the margins listed in the amended results. A margin of 4.24% ad valorem existed for merchandise manufactured/exported by Premier and a margin of 4.21% ad valorem existed for merchandise manufactured/exported by Jilin during the relevant period. See 65 Fed. Reg. 48478 (“Amended Final Results”).

On March 2, 2001, Customs received liquidation instructions informing it of the lifting of the liquidation suspension and directing the ports to assess antidumping duties on the subject merchandise, at the margins contained in the Amended Final Results. See Message #1061206. Customs liquidated the entries on July 6, 2001, and Customs assessed interest on the “underpaid” antidumping duties from the date of payment of estimated antidumping duties.

Protestant now contends that, under 19 U.S.C. 1504(d), the entries were liquidated by operation of law at the duty rates and deposit amounts included in the entry documentation at the time of entry. Protestant also claims that on entry of merchandise exported by Jilin and entered on August 4, 1990, was mistakenly assessed a margin of 7.07%, as opposed to the 4.21% contained in the Amended Final Results, and should be reliquidated at the 4.21% margin if the claim pursuant to 19 U.S.C. 1504(d) is denied.

ISSUES:

Whether the subject entries were “deemed liquidated” within the meaning of 19 U.S.C. §1504(d)

Whether Protestant owes interest on any “underpaid” antidumping duties

LAW AND ANALYSIS:

First, we note that the protest was filed in a timely manner. The entries were liquidated on July 6, 2001 and the protest was filed on September 28, 2001. See 19 U.S.C. §1514(c)(3) (requiring that protest of a decision regarding liquidation of an entry be filed within 90 days after the notice of liquidation or reliquidation).

The statute principally at issue in this matter is 19 U.S.C. §1504 (1988 & Supp. V 1993), states

When a suspension required by statute or court order is removed, the Customs Service shall liquidate the entry within 6 months after receiving notice of the removal from the Department of Commerce, other agency, or a court with jurisdiction over the entry. Any entry not liquidated by the Customs Service 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.

Thus, in order to determine the date on which suspension was removed, one must first determine the date on which that removal was effected. In Fujitsu General America, Inc. v. United States, 283 F.3d 1364 (Fed. Cir. 2002), the Court of Appeals for the Federal Circuit (“CAFC”) considered a situation similar to the one hand, and concluded that where liquidation is suspended pursuant to court injunction, the suspension is removed when a “final court decision” is reached in the cause of action before the court, i.e., when the decision can no longer be appealed. Id. at 1377. The court then concluded that the requisite notice of the removal is received by Customs when Commerce publishes notice of the “final court decision” in the Federal Register. Id. at 1380 (also citing to International Trading Co. v. United States, 281 F.3d 1268 (Fed. Cir. March 1, 2002), and its similar removal and notice via publication standard in those cases where suspension is imposed by statute, rather than court injunction).

Here, the CAFC decision became a “final court decision” within the meaning of 19 U.S.C. 1516a(e), on January 4, 2000, when the time for petitioning the Supreme Court for a writ of certiorari expired. See Fujitsu at 1379; 28 U.S.C. 2101(c). Customs received notice of that “final court decision” and removal of suspension on August 8, 2000, when Commerce published notice of that decision in the Federal Register. See Amended Final Results. In that notice, Commerce stated that stated that it was amending the Final Results and would instruct Customs to liquidate entries subject to the review at the margins listed in the amended results. Customs followed the liquidation instructions and liquidated the entries on July 6, 2001, with interest assessed accordingly. However, according to Fujitsu, the six-month period in §1504(d) tolled on August 8, 2001, and Customs had until February 9, 2001, to liquidate the entries pursuant to Commerce’s published notice. Therefore, the entries were “deemed liquidated” on 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 would be 0.97% ad valorem, or 2.96% ad valorem, depending on the manufacturer/exporter of the merchandise.

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).

Here, by operation of 19 U.S.C. 1504(d) (1988 & Supp. V 1993), no additional amount was due upon liquidation, or in this case, upon “deemed liquidation” of the entries. Therefore, 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 GRANTED. Under 19 U.S.C. 1504(d) (1988 & Supp. V 1993), the entries are deemed liquidated at the rates of duty asserted by Protestant at the times of their entries because the entries were not liquidated within six months of Customs receiving notice of the removal of suspension. Furthermore, interest charges on “underpaid” antidumping duties do not apply to the subject entries because Protestant did not underpay any antidumping duties as a result of the liquidation by operation of law.

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

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