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HQ 229808

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April 30, 2003

229808 LLB

Category: LIQUIDATION

Port Director of Customs
555 Battery Street
San Francisco, CA 94111

RE: Protest/AFR No. 2809-02-100663; 19 U.S.C. § 1520(c)(1); clerical error

Dear Sir or Madam:

The above referenced protest has been forwarded to this office for further review. We have considered the points raised by the protestant, Hynix Semiconductor America,

The protestant has informed this office that in October 1999, Hyundai Electronics acquired LG Semicon Co., Ltd. Subsequently, the company changed its name to Hynix Semiconductor. This ruling addresses the imports made by Hyundai Electronics. Inc. formerly known as Hyundai Electronics America, Inc., and your office. Our decision follows.

FACTS

The subject protest covers 468 entries of dynamic random access memory semiconductors (DRAMS) which capacities exceeded one megabite made between May 4, 1998 and September 21, 1998. According to the sample entries submitted, the DRAMS were imported by Hyundai Electronics America, Inc. (Hyundai America) and the packing invoices therewith, show the DRAMS were products of Korea exported by Hyundai Electronic Industries Co., Ltd. (Hyundai Korea). At the time of entry, DRAMS over one megabite from Korea were subject to an antidumping order issued by the Department of Commerce (Commerce). See Antidumping Order and Amended Final Determination: Dynamic Random Access Memory Semiconductors of One Megabit and Above from the Republic of Korea, 58 Fed. Reg. 27520 (May 10, 1993). The order stated that the merchandise was subject to a dumping margin of 11.16% and accordingly, directed Customs to collect cash deposits on entries made on or after the date of the order. Id. According to the entry documents submitted and the random entries this office retrieved from the Automated Commercial System (ACS), no cash deposits were made on the entries.

In 1999, the entries continued to be suspended as Commerce initiated a review of DRAMS from Korea for the relevant period of May 1, 1998 through April 30, 1999. See Initiation of Antidumping and Countervailing Duty Administrative Reviews, Requests for Revocation in Part and Deferral of Administrative Review, 64 Fed. Reg. 35124 (June 30, 1999). On June 6, 2000, Commerce published the preliminary results for the subject period, indicating that the weighted-average margin for Hyundai was 5.32%. See Dynamic Random Access Memory Semiconductors of One Megabit and Above from the Republic of Korea: Preliminary Results of Antidumping Duty Administrative Review and Notice of Intent Not to Revoke Order in Part, 65 Fed. Reg. 35886 (June 6, 2000). On November 15, 2000, Commerce published the final results for the subject period indicating the weighted-average margin for Hyundai was 2.30%. See Dynamic Random Access Memory Semiconductors of One Megabit and Above from the Republic of Korea: Final Results of Antidumping Duty Administrative Review, 65 Fed. Reg. 68976, 68978 (November 15, 2000).

On September 17, 2001, Commerce issued Customs instructions to liquidate the entries of DRAMS at a dumping margin of 2.3%. Based on the sample entries submitted and the random ACS entries reviewed by this office, Customs liquidated the entries between November 2001 and January 2002. On March 15, 2002, Commerce issued a correction to the foregoing instructions indicating the correct assessment rate, which was lower than the rate in the original instructions, for DRAMS from Korea, produced by Hyundai Korea, and imported by Hyundai America.

On April 22, 2002, the protestant filed a request for reliquidation pursuant to 19 U.S.C. § 1520(c)(1), which was denied on June 18, 2002. A protest was filed thereto on September 3, 2002, in which the protestant argued that the Commerce case handler, through clerical error, mistake of fact or other inadvertence, listed the wrong rate in the instructions, and therefore, the entries should be reliquidated under 19 U.S.C. § 1520(c)(1). We note that the protest was timely filed insofar as it was filed within 90 days of the June 18, 2002, denial of the protestant’s request for reliquidation. See 19 U.S.C. § 1514(c)(3)(B). Further, we note that the matter is protestable under 19 U.S.C. § 1514(a)(7).

ISSUE

Whether relief is available to the protestant pursuant to 19 U.S.C. § 1520(c)(1)

LAW and ANALYSIS

Initially, we note that the protestant has requested confidential treatment of the antidumping rate indicated in the March 15, 2002, liquidation instructions. After review of protestant’s request and the liquidation instructions, we are granting the protestant’s request. See 19 C.F.R. § 177.2(b)(7).

The protestant argues that Commerce through clerical error or other inadvertence, listed the wrong rate in the instructions, and therefore, the entries should be reliquidated pursuant to 19 U.S.C. § 1520(c)(1) which provides:

Notwithstanding a valid protest was not filed, the Customs Service may, in accordance with regulations prescribed by the Secretary, reliquidate an entry or reconciliation to correct— (1) a clerical error, mistake of fact, or other inadvertence, whether or not resulting from or contained in electronic transmission, not amounting to an error in the construction of law, adverse to the importer and manifest from the record or established by documentary evidence, in any entry, liquidation, or other customs transaction, when the error, mistake, or inadvertence is brought to the attention of the Customs Service within one year after the date of liquidation . . .

[M]istakes of fact occur in instances where either (1) the facts exist, but are unknown, or (2) the facts do not exist as they are believed to [and] [m]istakes of law, on the other hand, occur where the facts are known, but their legal consequences are not known or are believed to be different than they really are." Executone Information Systems v. United States, 96 F. 3d 1383, 1386 (Fed. Cir. 1996)(emphasis in original) citing Hambro Automotive Corporation v. United States, 66 CCPA 113, 118, C.A.D. 1231, 603 F. 2d 850 (1979); see also, Degussa Canada Ltd. v. United States, 87 F. 3d 1301 (Fed. Cir. 1996). A “clerical error” has been stated by the courts to be “a mistake made by a clerk or other subordinate, upon whom devolves no duty to exercise judgement, in writing or copying the figures or in exercising his intention.” See PPG Industries, Inc. v. United States, 7 C.I.T. 118, 124 (1984). “Inadvertence connotes inattention, oversight, negligence, or lack of care.” 94 Treas. Dec. 244, 245-6, T.D. 54848 (1959). “It should be noted that ‘clerical error, mistake of fact, or other inadvertence’ are not necessarily mutually exclusive terms. In other words some "mistakes of facts" also might be clerical errors or other inadvertence; or some "clerical errors" also might be mistakes of fact or other inadvertence, and so on.” Id.

The port denied the petition because “evidence of clerical error on U.S. Customs’ part was not presented.” The protestant argues that 19 U.S.C. § 1520(c)(1) does not limit Customs’ authority to correct errors made in liquidating entries only to those errors made by Customs. In support of its argument, the protestant cites several cases in which § 1520(c)(1) relief was granted to correct errors made by Customs brokers. See Aviall of Texas v. United States, 70 F.3d 1248 (Fed. Cir. 1995); Zaki Corporation v. United States, 960 F. Supp. 350 (Ct. Int’l Trade 1997); Taban Corporation v. United States, 960 F. Supp. 326 (Ct. Int’l Trade 1997). We do not dispute the application of § 1520(c)(1) as it relates to errors made by Customs brokers. In addition, the protestant argues that pursuant to Omni U.S.A. v. United States, 840 F.2d 912 (Fed. Cir. 1988), that Commerce errors are correctable by Customs under § 1520(c)(1) if the petition filed thereunder is within the requisite time period. In support its argument, the protestant directs us to the following statement:

Section 1520(c)(1) appears to fit the present case like a glove. It is a statutory instrumentality that is, according to its terms, exactly and precisely suited to deal with an instance, such as here described: customs officers have liquidated entries “as entered” when they should not have done so, because somebody inadvertently failed to inform them by suitable listing that entries of Japanese fasteners were to be suspended from liquidation pending review . . .

See Omni, 840 F.2d at 913. We note that insofar as the issues before the court involved jurisdiction, the foregoing statement by the court is merely dicta and is not binding. Further, Omni is distinguishable from the facts of the present case, because in Omni, there was no dispute as to how the mistake occurred. The entries in Omni were not listed on the “Notice of Intention to Review.” Here, the basis for the published margin of 2.3%, which was stated to be importer-specific based on Commerce’s estimate of the entered value of Hyundai’s sales by calculating the average of the entered value of each control number for the review period and the corrected lower margin.

Although the statute or the legislative history do not indicate the entity or persons whose clerical errors, mistakes of fact, or inadvertences are correctable thereunder, See 1953 U.S. Code Cong. and Adm. News, p. 2283, 2297; 1970 U.S. Code Cong. and Adm. News, p. 3188, 3217; 1978 U.S. Code Cong. and Adm. News p. 2211, 2243. the statute specifically states instances in which a clerical error, mistake of fact, or other inadvertence may be corrected—“in any entry, liquidation, or other customs transaction." “It is well settled that ‘in all statutory construction cases, we begin with the language of the statute.” Nippon Steel Corp. v. United States, No. 02-153, slip op. at 17 (Ct. Int’l Trade, Dec. 24, 2002)(citing Barnhart, Comm’r of Soc. Sec. V. Signmon Coal Co., Inc., 534 U.S. 438, 450 (2002). “We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then this first canon is also the last: ‘judicial inquiry is complete.’’ 534 U.S. at 461-62 (internal citation omitted). Thus, the court must determine ‘whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.’ Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). The protestant does not argue that an error occurred in the entry, liquidation, or other customs transaction; rather, the protestant argues that a clerical error, mistake of fact, or other inadvertence occurred when Commerce drafted the original liquidation instructions. Insofar as the issuance or the drafting of liquidation instructions are not one of the instances specifically listed by the statute, the statute does not apply.

However, for argument’s sake, we will explore whether there was an error in liquidation. By statute, only Customs is charged with the liquidation of entered merchandise. See 19 U.S.C. § 1500(d). The regulations promulgated under the authority of § 1500 define liquidation as, in pertinent part: “ . . . [t]he final computation or ascertainment of the duties or drawback accruing on an entry.” See 19 C.F.R. § 159.1. Customs and Customs courts 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 229413 (March 12, 2002); HQ 225382 (July 3, 1995); Mitsubishi Electronic America Inc. v. United States, 44 F.3d 973 (Fed. Cir. 1994). According to the record, at the time of liquidation, Customs followed message number 1260205 which directed Customs to liquidate the subject entries at 2.3% antidumping rate. Hence, there was not error in liquidation.

Even if errors by Commerce were correctable under § 1520(c)(1), the errors alleged by the protestant are not manifest in the record or supported by documentary evidence. The protestant argues that message 1260205 contained an erroneous assessment of 2.3%. What is manifest in the record is that the 2.30% margin indicated in message 1260205, is the same margin stated in the final results. See 65 Fed. Reg. 68976. However, the protestant argues that the reason the correction message (message 2074203) has a different (correct) rate is because the latter reflects the importer-specific margin and final results and the original liquidation instructions reflect the weighted-average margin for producers. In support of this argument, the protestant asserts the following in its protest:

This rate [2.3%] is the final weighted-average dumping margin found for all Hyundai U.S. sales for the 6th administrative review. However, as stated in the DOC notice of the final results, the DOC calculated importer-specific assessment rates and was to issue appraisement instructions to the Customs Service so that the agency could liquidate each importer’s entries using the appropriate importer-specific rate.

(internal footnote omitted). The language in the final results that refers to assessment of the margins provides as follows:

The Department shall determine, and the Customs Service shall assess, antidumping duties on all appropriate entries. The Department will issue appraisement instructions directly to the Customs Service. Where the importer-specific rate is above de minimis, we will instruct Customs to assess antidumping duties on that importer’s entries of the subject merchandise.

These final results of review shall be the basis for the assessment of antidumping duties on entries of merchandise covered by this review. For duty-assessment purposes, we calculated importer-specific rates by aggregating the dumping margins calculated for all U.S. sales to each importer and dividing this amount by the total estimated entered value reported for those sales. Hyundai and LG, in accordance with the Department’s questionnaire, estimated the entered value of their respective sales by calculating the average of the entered value of each control number for the POR. For all other respondents, we based [the] assessment rate on the facts available margin percentage.

See 65 Fed. Reg. 68976 (emphasis added). Insofar as the foregoing statement indicates the importer-specific rate for Hyundai and LG and the calculation thereto, the protestant’s assertion is unsupported.

The only documentary evidence provided by the protestant is the correction message for message 1260205 (message 2074203), which the protestant asserts was issued by Commerce once the protestant “contacted the DOC to bring this error to the agency’s attention.” We note that the evidence of the protestant’s communication to Commerce, which might show the nature of the error, was not provided.

The protestant further asserts that the “DOC acknowledged that a mistake had been made in preparing the instructions and issued a new message to Customs, Message No. 2074203, on March 15, 2002, correcting and replacing the previous liquidation instructions.” Although message 2074203 is titled “Correction and Replacement of Msg. 1260205 . . .” and the assessment rate is lower than the original message, there are no other documents in the record that indicate that this correction was issued as the result of a clerical error, mistake of fact or other inadvertence in the original instruction. Further, even though message 2074203 states that the rate in paragraph 1 of 1260205 is incorrect, there are no reasons provided for this conclusion. In fact, the protestant even concedes that “[i]t is unclear whether the inclusion of the incorrect assessment rate in the Commerce Department’s original liquidation instructions to Customs was due to a clerical error or other inadvertence.” Without any evidence as to how the error occurred, the protestant has failed to meet the requirements of § 1520(c)(1).

HOLDING

The protestant has not shown with documentary evidence, nor is it manifest from the record that a clerical error, mistake of fact, or other inadvertence occurred in the entry, liquidation, or other customs transaction; therefore, relief is unavailable under 19 U.S.C. § 1520(c)(1). The 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, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing 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.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles Harmon, Director
Commercial Rulings Division

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