HQ 230168 - Protest number 3901-03-101490; Application for Further Review; 19 U.S.C. § 1514; antidumping duty; manufacturer; deemed liquidation; 19 U.S.C. § 1504(d); liquidation instructions; Xerox Corp. v. United States, 289 F.3d 792 (Fed. Cir. 2002); International Trading Co. v United States, (281 F.3d 1268 (Fed. Cir. 2002); Fujitsu Gen. America, Inc. v. United States, (110 F. Supp. 2d 1061 (Ct. Int’l Trade 2000); (aff’d 283 F.3d 1364 (Fed. Cir. 2002)) - United States International Trade Commision Rulings

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HQ 230168

February 18, 2004

PRO-2-02 RR:CR:DR
230168RDC

CATEGORY: PROTEST

Port Director, Customs and Border Protection 610 S. Canal Street
Room 306
Chicago, IL 60607
Att: Robert Lehman

RE: Protest number 3901-03-101490; Application for Further Review; 19 U.S.C. § 1514; antidumping duty; manufacturer; deemed liquidation; 19 U.S.C. § 1504(d); liquidation instructions; Xerox Corp. v. United States, 289 F.3d 792 (Fed. Cir. 2002); International Trading Co. v United States, (281 F.3d 1268 (Fed. Cir. 2002); Fujitsu Gen. America, Inc. v. United States, (110 F. Supp. 2d 1061 (Ct. Int’l Trade 2000); (aff’d 283 F.3d 1364 (Fed. Cir. 2002))

Dear Port Director:

This is in response to your Memorandum of October 25, 2003, which forwarded the above referenced Protest to this office for further review. On November 13, 2002, representatives from this office conducted a teleconference with the Protestant’s counsel regarding the instant Protest. We have considered the evidence provided and the points raised by the Protestant and your office. Our decision follows.

FACTS:

The Protestant, Power Train Components, Inc., (“Power Train”), protests the liquidation of entry number 551-xxxx440-8. Power Train contends that the entry was liquidated imposing the wrong antidumping duty rate “due to information provided to the protestant by the manufacturer.” The Protestant contends that the bearings entered were manufactured by Wanxiang Group Corp., (“Wanxiang China”), and not Guizhou Machinery Import and Export Corp., (“Guizhou”). According to www.wanxiang.com, Wanxiang America Corporation (“Wanxiang U.S.”), is a “wholly owned subsidiary company of Wanxiang Group China.” Power Train also argues that, in the alternative, the entry was deemed liquidated as entered per 19 U.S.C. § 1504(d).

According to the provided CF 7501, entry summary, Power Train was the importer of record for goods entered on July 8, 1996, subject to antidumping duty case number A-570-601-002, (tapered roller bearings (“TRBs”) and parts thereof, finished and unfinished, from the People’s Republic of China; 002 indicates manufactured by China National Machinery and Equipment), with zero antidumping duty asserted. This case number was struck through by the port and replaced with “A 570-601-003.” (The 003 indicates Guizhou as the manufacturer.) The zero antidumping duty asserted at entry also was struck through by the port and replaced with “33.18%.” The value of the goods is stated as $137,376.00 The export date is shown as June 19, 1996, and the country of origin and exporting country are stated at the People’s Republic of China, (“PRC”). The manufacturer identification number is CNGUIMAC5GUI.

The Protestant supplied a copy of purchase order number 7979, dated March 12, 1996, and labeled, “revised.” This purchase order is issued to Wanxiang U.S., to the attention of Pin Ni, from Power Train. It lists the quantity, part number and cost per unit, but does not describe the goods, except by stating “all set bearings must be individually wrapped.” Eleven different part numbers are identified: A-1, A-2, A-3, A-12, A-13, A-15, A-17, A-35, A-37, A-18, and A-34. Each part number contains the letter and number indicated above followed by “/CH.” The quantity of each ranges from 3,000 to 25,000. The total quantity is 136,400, and the total cost amount is $164,025.75. The notation “to be shipped May / June” is included.

A copy of the entry documents was provided by the port. Attached to this CF 7501 is a CF 3461 (entry / immediate delivery) for the protested entry, an invoice, a packing list, a certificate of origin from the PRC, a copy of the declaration page for an insurance policy, and an international bill of lading. The CF 3461 references the protested entry number, states Power Train as the importer of record, and contains the same manufacturer number as the entry summary, CNGUIMAC5GUI.

The invoice, number WAC-B01796, from Wanxiang U.S., is dated June 25, 1996. It shows a ship date of June 19, 1996, and describes the goods sold and shipped to PTC, [Power Train Components] Inc. of Bryan Ohio, only by what appears to be part numbers. The total price of the goods is shown as $137,375.86 and there is a 4 percent broker fee. No shipping, handling or freight fees are included. Six descriptions of goods and their quantity appear on the invoice: A-1 (LM11749/10); A-6 (LM67048/10); A12 (LM12749/10); A15 (L45449/10); A16 (L12749/11); and A4 (L44649/10). The total quantity is 127,550. The purchase order number has been left blank.

The packing list from Wanxiang U.S. shows that the goods were sold and shipped to Power Train. It is not dated. The list references invoice number WAC-B01796, dated June 25, 1996, described above. Six different descriptions of goods appear with the quantity of each: LM11949/10; LM67048/10; LM12749/10; L45449/10; LM12749/11; and L4469/10. Total quantity is 127,550 on 18 pallets and 729 cartons. The purchase order number has been left blank.

The certificate of origin is dated May 28, 1996, and states Guizhou Machinery I/E Company, LTD, as the exporter. The consignee is A. N. Deringer, Inc., (“Deringer”). The weight is described as “17.30 MTS,” and the invoice as “96GM-233-3, May 28, 1996.” The declaration by the exporter is rubber-stamped “Guizhou Machinery Import & Export Corporation Limited.” Six different descriptions of goods appear with the quantity of each: LM11949/10; LM67048/10; LM12749/10; L45449/10; LM12749/11; and L4469/10. Total quantity is 127,550 on 18 pallets and 729 cartons.

The insurance policy declaration page is from “The People’s Insurance Company of China, Hangzhou Branch.” This page states that Guizhou Machinery Imp. and Exp. Co., LTD” is the insured and references invoice number 96GM-233-3, described above. The goods are described as 18 pallets of bearings. The international bill of lading, dated June 19, 1996, states that Guizhou Machinery is the shipper and exporter of record. It describes the goods as 18 pallets of bearings in 729 cartons including 4 empty cartons.

The Protestant also has supplied a document labeled “declaration” signed and dated June 23, 2003, by Xu Huajun, Exporting Manager of North America, Wanxiang Import and Export Co., Ltd., of Wanxiang Group China since 1995. This declaration states that Xu Huajun has personal knowledge of the facts of the transaction associated with, among others, Purchase Order 7979 and invoice WAC-B01796, and that the bearings described therein were manufactured by Wanxiang China, but shipped to Power Train by Guizhou.

There is also a declaration signed on June 23, 2002, by Pin Ni, President of Wanxiang America Corporation. Pin Ni states, “I directly supervise and have personal knowledge of the circumstances of sales” to Power Train. “I have personally examined the circumstances of the sales of certain [TRBs] described in Purchase Order . . . 7979 . . . dated March 12, 1996,” among others. Pin Ni further states, that Wanxiang China manufactured all the [TRBs] described in Purchase Order 7979 among others.

Finally, a letter from Xu Huajun to the President and General Manager of Power Train references “Taper [sic] Roller Bearing Shipment KKLU880860080” and is dated November 21, 2002. In this letter, Xu Huajun advises Power Train that “all bearings from the above shipment” were made by Wanxiang but “due to some other business arrangement, we agreed to have Guizhou to export” the bearings. This letter describes Guizhou as “a trading company that did not make any bearings as you could see from the name of the company.”

On December 28, 1998, the Department of Commerce, (“DOC”), published the Notice of amended final results of 1996-1997 antidumping duty administrative review with regard to antidumping case number A-570-601 (63 Fed. Reg. 71447). These amended final results were challenged in the Court of International Trade by the Timken Company (see Timken Co. v. United States, 201 F. Supp. 2d 1316 (Ct. Intl. Trade 2002). On September 3, 2002, the CIT affirmed Commerce’s Remand Results in their entirety and the case was dismissed (see Timken Co. v. United States, Slip Op. 2002-104 (Ct. Intl. Trade 2002).

Message number 2360202 dated December 26, 2002, from the DOC to CBP and undisclosed to the public, contained the liquidation instructions for antidumping case number A-570-601 for goods entered between June 1, 1996, and May 31, 1997. These instructions in part directed Customs to do the following:

For all shipments of tapered roller bearings and parts thereof, finished and unfinished, from the People's Republic of China produced or exported by the manufacturers listed below, imported by or sold to (as indicated on the commercial invoice or customs documentation) the importer or customer listed below, and entered or withdrawn from warehouse for consumption during the period 06/01/1996 through 05/31/1997, assess an antidumping duty.
manufacturer: Wanxiang Group Corporation (A-570-601-016) customer/and/or importer: per unit amount($/piece): Power Train Component Inc. $0.00

For all other shipments of tapered roller bearings and parts thereof, finished and unfinished, from the People's Republic of China entered or withdrawn from warehouse for consumption during the period 06/01/1996 through 05/31/1997, assess an antidumping duty liability equal to the percentage listed below of the entered values.

PRC wide ad valorem rate (a-570-601-000): 33.18 percent

On April 15, 2003, a CF 29, Notice of Action, was sent to Power Train advising that the protested entry was going to be assessed antidumping duties at a rate of 33.18 percent. According to Customs Automated Commercial System, (“ACS”), the protested entry was liquidated on May 9, 2003, with antidumping duty of $45,581.36 and interest of $32,138.77 imposed. The instant Protest was received in the Port of Chicago on August 6, 2003.

ISSUE:

1. Whether CBP correctly applied the “all-others” rate of 33.18% to the protested entry per Commerce’s liquidation instructions in Message number 2360202, dated December 26, 2002?

2. Whether CBP failed to liquidate the protested entry within 6 months of receiving notice that the suspension of liquidation was lifted?

LAW AND ANALYSIS:

We note initially that the instant Protest was timely filed, i.e., within 90 days of the liquidation of the entry (19 U.S.C. § 1514(c)(3)(B)). The protested entry was liquidated on May 9, 2003, and this Protest was received on August 6, 2003. Under 19 U.S.C. § 1514(a) “decisions of the Customs Service, including the legality of all orders and findings entering into the same, as to . . . the liquidation or reliquidation of an entry . . . are final unless a protest of that decision is filed within 90 days of the notice of liquidation (19 U.S.C. §1514(c)(3)(B)).

Power Train protests the liquidation of the entry with additional antidumping duties assessed due to “information provided to the Protestant by the manufacturer.” As a result, Customs applied the “all others” rate instead of the rate applicable to Wanxiang China as the manufacturer. Power Train contends that the tapered roller bearings entered with the protested entry were manufactured and exported by Wanxiang China and thus, per DOC Message number 2360202, these bearings are subject to a zero rate of antidumping duty for the June 1, 1996 through May 31, 1997 period of review. Customs liquidated the entry with Guizhou Machinery Import and Export Corp., (“Guizhou”) as the manufacturer and thus applied the “all-others” rate of 33.18% antidumping duty.

When assessing and collecting antidumping duties Customs merely follows Commerce's instructions. Therefore, generally, antidumping duty rates correctly applied by Customs are not protestable, (see Fujitsu Ten Corp. v. United States, 957 F. Supp. 245 (Ct. Intl. Trade 1997)) because “Customs has a merely ministerial role in liquidating antidumping duties” and only applies antidumping rates determined by Commerce (Mitsubishi Electronics America, Inc. v. United States, 44 F.3d 973, 977 (Fed. Cir. 1994)). However, inasmuch as Power Train protests the liquidation, i.e., disputes the application by Customs of Commerce’s liquidation instructions, this matter is protestable. (See Xerox Corp. v. United States, 289 F.3d 792 (Fed. Cir. 2002)).

It is the opinion of the port that this Protest warrants further review. Under 19 U.S.C. § 1515(a), “[u]pon the request of the protesting party . . . a protest may be subject to further review by another appropriate customs officer, under the circumstances and in the form and manner that may be prescribed . . . in regulations." The Protestant seeks further review per 19 C.F.R. § 174.24(c). We agree that further review is warranted pursuant to 19 C.F.R. § 174.24(c).

According to the liquidating Port, upon liquidation of the protested entry:
antidumping duties were assessed against the exporter of the tapered roller bearings which was Guizhou Machinery Import and Export Corp. The assessment was based on the progression used by the Dept of Commerce. The progression states that if merchandise is exported by a firm other than the manufacturer, then the following instructions apply: A. if the exporter of the subject merchandise has its own rate, use the exporter rate for determining the cash deposit rate; B. If the exporter of the subject merchandise does not have its won rate but the manufacturer has its own rate, the cash deposit rate will be the manufacturer’s rate. C. When neither the exporter nor the manufacturer currently has its own rate or the manufacturer is unknown, use the “all other” rate for establishing the cash deposit rate.

The Port states that the instruction to use this “progression” is contained in Message number 1064204, dated March 5, 2001. This message is labeled “cash deposit instructions” for the period February 26, 2001, and does not appear to be relevant either to liquidation of entries nor to the period during which the protested entry was entered. The Port’s explanation of liquidation notwithstanding, the entry was liquidated consistent with the applicable liquidation instructions.

Message number 2360202 directed Customs to assess antidumping duty based on who produced or exported the TRBs and who imported or bought those TRBs, i.e., the manufacturer that produced or exported the TRBs paired with the importer or purchaser to which that manufacturer sold the TRBs indicated the rate. Thus, CBP was instructed to assess antidumping duty based on pairs: manufacturer who produced or exported the TRBs, (among which Wanxiang China was listed), coupled with the importer or purchaser of the TRBs, (among which was Power Train), “as indicated on the commercial invoice or customs documentation.” If the manufacturer or exporter was listed along with the importer or purchaser relevant to the entry, then CBP was directed to collect a specific rate of antidumping duty. For example, if, as the Protestant contends, the manufacturer or exporter was Wanxiang China and the importer or purchaser was Power Train, then CBP was directed to collect zero antidumping duty. If the manufacturer or exporter and the importer or purchaser pair relevant to the entry did not appear on the message, then CBP was directed to assess the “ PRC wide ad valorem rate” of 33.18 percent.

According to the antidumping case asserted by the importer on the CF 7501, i.e., “A-570-601-002,” Power Train originally asserted China National Machinery and Equipment as the manufacturer. However, according to the manufacturer identification number on the CF 7501 and the CF 3461, “CNGUIMAC5GUI,” the manufacturer was Guizhou. Purchase Order number 7979 references Wanxiang U.S., as does the invoice number WAX-B01796, and the packing list. The certificate of origin, the insurance policy declaration page and bill of lading all reference Guizhou. Neither Guizhou nor Wanxiang U.S. as manufacturers are included on the liquidation instructions as having a specific rate of duty. Consequently, based on the information provided on the entry documents, CBP assessed antidumping duty at the “PRC-wide others rate” because the combination of the manufacturer who produced or exported the TRBs, ostensibly, Guizhou or Wanxiang U.S., and the importer or purchaser of the TRBs, Power Train, was not assigned a specific rate of duty, and the all-others rate applied.

However, though none of the entry documents mention Wanxiang China, the Protestant contends that Wanxiang China manufactured the TRBs at issue. Power Train submitted three pieces of evidence with its various submissions in this Protest to prove Wanxiang China was the manufacture: the two declarations and the 2002 Huajun letter. For different reasons we find each of these pieces of evidence unpersuasive. Power Train states that “pursuant to information from the manufacturer,” and references the November 21, 2002, letter from Xu Huajun, Power train entered the TRBs as “subject to antidumping duty case A-570-601-002 and listed the manufacturer” as Guizhou. We find this statement paradoxical. It is undisputed that the protested entry was entered in 1996, thus a letter dated in 2002 could not have been the basis for information about the entry. Further, the letter specifically refers to “shipment” KKLU880860080,” which shipment is in no way evidenced as connected to the entry at issue. Finally, the November 21, 2002, letter states that Wanxiang China is the manufacturer and therefore cannot form the basis for the conclusion that Guizhou was the manufacturer.

Next, Power Train offers the “sworn” declarations by officials of Wanxiang [China] and Wanxiang [U.S.] declaring on the basis of their personal knowledge that the TRBs” associated with purchase order number 7979 (among others) were manufactured and exported by Wanxiang China. The two declarants both attest to personal knowledge of the transaction. However, this purchase order does not seem to be relevant to the protested entry. While the information contained in the entry documents, i.e., the CF 3461 (entry / immediate delivery), invoice number WAC-B01796, the packing list, certificate of origin from the PRC, the declaration page from the insurance policy, and the international bill of lading, is consistent with the information contained on the entry summary, the information contained on purchase order number 7979 is inconsistent with that on the entry documents and the CF 7501.

The price of the goods shown on invoice number WAC-B01796 corresponds to the value declared on the entry summary, CF 3461 and insurance dec page but is inconsistent with the cost of the goods on the purchase order. The cost on the purchase order is more than $21,000 more than reflected on the CF 7501, CF 3461, or the invoice. Moreover, the description on the purchase order of the bearings purchased does not correspond with the other entry documents. The purchase order reflects eleven different part numbers: A-1, A-2, A-3, A-12, A-13, A-15, A-17, A-35, A-37, A-18, and A-34, with a total of 136,400 pieces. Yet, the invoice and the packing list identify only 6 different part numbers and quantities of 8,850 pieces less than the purchase order. The invoice, the packing list and certificate of origin identify only six different part numbers and state the total quantity as 127,550.

The fact that the purchase order shows a higher value and more parts and more part numbers than the invoice and packing list may have been explained as due to more than one shipment and entry to fulfill the purchase order. However, that cannot be the case in this instance because there are bearing part numbers on the invoice that do not appear on the purchase order. Further, none of the quantities for any of the part numbers which do appear on the purchase order and the invoice and packing list correspond. Again, the invoice and packing list correspond to each other, but the purchase order does not correspond to the information contained on either of those documents. For example, the purchase order states 8,000 of part number A-1. The invoice and the packing list state 30,000 of part A-1. A second example is that the packing list and invoice reflect 11,550 of A-4 and 20,000 of A-6. Part numbers A-4 and A-6 are not included on the purchase order. Consequently the relationship between purchase order 7979 and the protested entry has not been demonstrated.

Further, this lack of relevance undermines the value of the declarations as evidence in that one personally familiar with the transaction connected to purchase order 7979 and invoice number WAC-B01796, would be expected to notice the inconsistencies between the two documents and at least offer an explanation. Since Power Train provides no persuasive evidence to the effect that Wanxiang China produced or exported the TRBs at issue, the Protestant has not proved that the bearings entered with the protested entry were manufactured by Wanxiang China, nor that Wanxiang China exported the bearings. As a result, Power Train did not prove that CBP liquidated the protested entry in a manner inconsistent with the instructions contained in DOC’s Message number 2360202.

In the alternative, Power Train argues, “the entry was ‘deemed’ liquidated by operation of law with the amount of [antidumping] duty asserted at the time of entry (0.00%)” under 19 U.S.C. § 1504(d). Section 1504(d) provides in relevant part:

Except as provided in section 751(a)(3) [19 USC § 1675(a)(3), Administrative review of determinations], 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, . . . . 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.

Power Train argues that the protested entry was deemed liquidated as entered per 19 U.S.C. § 1504 under International Trading Co. v United States, (281 F.3d 1268 (Fed. Cir. 2002)). In that case, Commerce published the final results of an administrative review in the Federal Register and, more than six months after publication of the final results, Commerce sent liquidation instructions by e-mail to Customs in which it stated that suspension of liquidation was lifted, and directed the assessment of antidumping duties. (Id. at 1270.) The court held “that suspension of liquidation was removed when the results of the administrative review were published in the Federal Register. (Id. at 1277). However, with regard to the instant Protest, the reasoning and holding in International Trading, do not apply because, in that case, unlike the instant Protest, there was no lawsuit challenging the DOC’s final results, i.e., Timken Co. v. United States, Slip Op. 2002-104 (Ct. Intl. Trade 2002).

Moreover, International Trading is not applicable to the instant Protest because the court in that case was applying the pre-1994 version of § 1504(d). On December 8, 1994, the Uruguay Round Agreements Act (“URAA”) was enacted. The URAA added the phrase, "Except as provided in section 751(a)(3), when a suspension" to § 1504(d), among other changes (Dec. 8, 1994, P.L. 103-465, Title II, Subtitle A, § 220(c), 108 Stat. 4865). The version of § 1504(d) as amended by the URAA applies to this entry because the relevant administrative review commenced after January 1, 1995. (See Torrington Co. v. United States, 68 F.3d 1347 (Fed. Cir. 1995) holding, the URAA applies to administrative reviews initiated after to January 1, 1995. See URAA § 291(a)(2), (b).

The plain meaning of the language added in 1994, i.e., “[e]xcept as provided in section 751(a)(3) [19 USC § 1675(a)(3), Administrative review of determinations], is that it excludes an entry from deemed liquidation under 1504(d) when that entry is subject to the provisions of § 1675(a)(3), such as the protested entry. The amending phrase creates an exception from application of § 1504(d) for entries that are administratively reviewed and subject to the liquidation provisions of § 1675(a)(3). Consequently, § 1504(d) does not apply to the protested entry and the entry was not deemed liquidated.

In addition, even if § 1504(d), rather than § 1675(a)(3), applies here, Customs liquidated the protested entry within 6 months of receiving notice that suspension of liquidation was removed. In Fujitsu Gen. America, Inc. v. United States, (110 F. Supp. 2d 1061 (Ct. Int’l Trade 2000); (aff’d 283 F.3d 1364 (Fed. Cir. 2002)) (“Fujitsu”), the liquidation of the entries at issue was enjoined when Commerce's final results of an administrative review were challenged in the CIT. The CIT affirmed Commerce’s final results as adjusted on remand and the CAFC affirmed this decision. However, Commerce delayed issuing the Federal Register notice of this decision and issuing liquidation instructions to Customs for nearly a year. Customs liquidated the subject entries after receiving the liquidation instructions. Fujitsu argued that the entries were deemed liquidated per § 1504(d) because Customs did not liquidate the entries within 6 months of having received notice that the suspension of liquidation was lifted, i.e. 6 months after the CAFC decision was issued.

The CAFC in Fujitsu described the application § 1504(d) (1993) by stating:

Thus, in order for a deemed liquidation to occur, (1) the suspension of liquidation that was in place must have been removed; (2) Customs must have received notice of the removal of the suspension; and (3) Customs must not liquidate the entry at issue within six months of receiving such notice.

(Fujitsu 283 F.3d 1364, 1376). The CAFC then affirmed the CIT’s holding that, because the suit challenging the final results of administrative review was appealed to the CAFC, suspension of liquidation was removed when the “time for petitioning the Supreme Court for certiorari expire[d] without the filing of a petition.” (Id. at 1379). Further, the CAFC held that Customs had notice of the suspension’s removal upon publication in the Federal Register of the notice of the final court decision. (Id. at 1380).

With regard to the instant Protest, the case challenging Commerce’s final results of administrative review was Timken Co. v. United States. On September 3, 2002, the CIT affirmed Commerce’s remand results in their entirety and the case was dismissed (see Timken Co. v. United States, Slip Op. 2002-104 (Ct. Intl. Trade 2002). According to Power Train, no appeal to the CAFC was filed. Consequently, per the CAFC’s reasoning in Fujitsu the CIT’s decision in Timken Co. v. United States was “final” when the time for filing an appeal of the CIT decision to the CAFC ended without an appeal being filed. Per the United States Court of Appeals for the Federal Circuit Rules of Civil Procedure, there is a 60-day period for filing an appeal of a CIT decision with the CAFC (Ct App. Fed. Cir., Cir. R. 10 (2003)). Therefore, suspension of liquidation of the protested entry was removed 60 days after the CIT issued its decision, i.e., on November 3, 2002, when the time for petitioning the CAFC for review expired.

Next it must be determined when Customs received notice of the removal of the suspension of liquidation. Power Train contends that Customs had notice of the decision in Timken Co. v. United States because the “the Government was a party.” In Fujitsu, the plaintiff argued that Customs had notice that the court-ordered suspension of liquidation was removed on the date the CAFC issued its decision because the decision was available publicly and served on the United States (see Fujitsu at 1380). Fujitsu thus maintained that since Customs liquidated the entry a year after the issuance of the decision which constituted § 1504(d) notice to Customs, the entry was deemed liquidated pursuant to 19 U.S.C. § 1504(d) (1994).

With regard to the same argument, the CAFC in Fujitsu, stated:

Fujitsu argues, nevertheless, that our decision in Fujitsu General was available in a variety of commercially available print and electronic media, thus providing Customs with notice for purposes of 19 U.S.C. § 1504(d). The problem with this argument is that the statute requires that Customs receive notice that a suspension of liquidation has been removed from "the Department of Commerce, other agency, or a court with jurisdiction over the entry." General print or electronic media publication does not satisfy that requirement. In any event, there is no evidence that in fact Customs received general media notice of the Fujitsu General decision.

(283 F.3d 1364, 1380-81). Consequently, the issuance of the CIT decision in Timken Co. v. United States cannot serve as notice to Customs that suspension of liquidation was removed.

In Fujitsu the CAFC affirmed the CIT’s decision that Customs had notice that the suspension of liquidation was removed upon publication in the Federal Register of the notice of the final court decision. (283 F.3d 1364, 1380). However, Power Train argues that “because the remand redetermination final results were in harmony with the amended final results, no ‘Timken Notice,’” per Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 1990) was required. We agree that the DOC was not required by 19 USC § 1516a(e) to publish notice of the court decision in Timken Co. v. United States because the cause of action was not “sustained in whole or in part” (19 USC § 1516a(e)). However, Commerce was required per 19 U.S.C. § 1675(a)(3)(C) to “transmit to the Federal Register for publication the final disposition” “of the review under section 516A [19 USCS § 1516a], [judicial review in antidumping duty proceedings] within 10 days after the final disposition” (§ 1675(a)(3)(C)).

However, in Power Train’s case, because no notice of the final court decision was published in the Federal Register, Customs must have received § 1504(d) notice that suspension of liquidation was removed in another way. Because we have no evidence to suggest that Customs received § 1504(d) notice that suspension of liquidation was removed with regard to the protested entry before DOC issued the liquidation instructions, we hold that receipt of Message number 2360202 containing liquidation instructions on December 26, 2002, constituted § 1504(d) notice to Customs that suspension of liquidation of the protested entry was lifted. Moreover, even if §1504(d), rather than § 1675(a)(3) applies to the protested entry, since the entry was liquidated on May 9, 2003, within the 6 month period required by § 1504(d), the protested entry was not deemed liquidated.

HOLDING:

1. CBP correctly applied the “all-others” rate of 33.18% to the protested entry per Commerce’s liquidation instructions in Message number 2360202, dated December 26, 2002.

2. Even if § 1504(d), rather than § 1675(a)(3), applies to the protested entry, CBP liquidated the protested entry within 6 months of receiving notice that the suspension of liquidation was lifted.

The Protest should be DENIED in full.

Consistent with the decision set forth above, you are hereby directed to deny the subject protest. 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 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 this 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.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles Harmon, Director

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