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HQ 230204




August 31, 2004

LIQ-4-01; LIQ-11 RR:CR:DR HQ 230204 MK

Port Director
U.S. Customs and Border Protection
40 S. Gay Street
Baltimore, MD 21202

RE: Protest number 1303-02-100253; American Motorists Insurance Company; 19 U.S.C. 1504(d); deemed liquidation; antidumping duties; International Trading Co. v. United States, 281 F.3d 1268 (Fed. Cir. 2002).

Dear Port Director:

The above-referenced protest has been forwarded to this office for further review. We have considered the points raised by the protestant, American Motorists Insurance Company, and your office.

Our decision follows.

FACTS:

On August 13, 2002, a “Formal Demand on Surety” report for bill numbers 43644216 through 43644233 was sent to American Motorists Insurance Co. c/c C.A. Shea & Co. Inc. from the National Finance Center of the Customs and Border Protection (CBP).

The Customs Form (CF) 19 and attached memorandum were filed on October 25, 2002. The Protestant is American Motorists Insurance Company, c/o C.A. Shea & Company, Inc. The protest memorandum, and dated October 23, 2002 states:

This protest, filed on behalf of the Protestant/ Surety (as designated in Box 6 of the attached C.F. 19), challenges Customs assessment of supplemental duties or other charges/ exactions, as embodied in demand on surety made on the date set forth in Box 5 It is intended to cover any and all such claims arising in connection with the merchandise imported under the entries referred to above, or appearing on the captioned schedule, including but not limited to:

Tariff classification and rate or amount of duty; Appraisement;
Assessment of special duties (e.g. antidumping, countervailing, marking, etc.); Any and all other charges and exactions, or whatever character, within the jurisdiction of the Secretary of the Treasury; Exclusions of merchandise or demand for redelivery to Customs custody;

Liquidation or re-liquidation of an entry or reconciliation, or any modification thereof including issues as to the timeliness of such action; Denial of claim for drawback;
Refusal to re-liquidate a claim under 19UCS1520(c); and Any of the above as specifically applied to Protestant/Surety.

(emphasis in original).

The memorandum requests copies of all documentation relevant to these transactions under the Freedom of Information Act (FOIA) and that the protest ruling be deferred until the protestant is in possession of these documents.

On January 16, 2003, a document entitled “Addendum for Protest No. 1303-02-100253,” on Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP letterhead, was filed. This addendum argues that the subject entries deemed liquidated per 19 U.S.C. 1504(d). In a footnote this addendum states:

A Customs officer may consider alternative claims and additional grounds or arguments submitted in writing by the protesting party with respect to any decision which is the subject of a valid protest at any time prior to the disposition of that protest. See 19 C.F.R. § 174.28. Furthermore, in the instant case, because the protestant is a surety, when the protestant filed the CF 19, he requested that the protest be deferred until entry documents were provided in response to the protestant’s FOIA request. Having recently received the entry documents in response to the protestant’s FOIA request, this addendum to the protest is provided herein.

Between September 3, 1999, and June 30, 2000, Icon Foods, LLC (“Icon”) made eighteen entries of canned pineapple fruit from Thailand. Entry xxxx-112-8 covered fruit, classified under subheading 2008.20.00, Harmonized Tariff Schedule United States, (“HTSUS”), and was made on June 29, 2000, by Icon. The fruit was subject to antidumping case number A-549-813-004, and the importer deposited the estimated regular duty of $.0035 per kilogram but did not deposit estimated antidumping duty. The CF 7501 also states that the invoice number for this entry is I1300676. The file includes an invoice, number I1300676, dated May 22, 2000, on Malee Brand letterhead, addressed to Icon Foods, LLC for the purchase of canned choice pineapple tidbits in natural juice from Thailand.

The Notice of Antidumping Duty Order and Amended Final Determination: Canned Pineapple Fruit From Thailand, 60 Fed. Reg. 36775 (July 18, 1995) states that “On or after the date of publication of this notice in the Federal Register, U.S. Customs officers must require, at the same time as importers would normally deposit estimated duties, the following cash deposits for the subject merchandise: Manufacturer/ Producer/ Exporter: Malee, Weighted- average margin percent: 41.74. This notice constitutes the antidumping duty order with respect to CPF [canned pineapple fruit] from Thailand, pursuant to section 736(a) of the Act.”

On September 6, 2000, the Department of Commerce (“DOC”) published the Initiation of Antidumping and Countervailing Duty Administrative Reviews and Requests for Revocation in Part, 65 Fed. Reg. 53980 (September 6, 2000). This document stated that DOC would be initiating an administrative review of canned pineapple, A-549-813, from Malee Sampran Factory Public Company, Ltd. for the time period from July 1, 1999 to June 30, 2000.

On October 17, 2001, DOC published Notice of Final Results of Antidumping Duty Administrative Review and Recission of Administrative Review in Part: Canned Pineapple Fruit From Thailand, 66 Fed. Reg. 52744 (October 17, 2001).

On April 2, 2002, Message Number 2092202, was issued to the Directors of Field Operations, regarding liquidation instructions for canned pineapple fruit from Thailand produced by Malee Sampran Public Co., Ltd. (A-549-813-004) stated:

For all shipments of canned pineapple fruit from Thailand produced or exported by Malee Sampran Public Co., Ltd. (Malee), entered or withdrawn from warehouse for consumption during the period of 07/01/1999 through 06/30/2000, and imported by or sold to the following parties as shown on the commercial invoice or customs document, assess antidumping liabilities listed below as a percentage of the entered value. Entries may have been made under A-549-813-004 or A-549-813-000.

Importer or Customer Margin Percentage
Icon Foods 9.92

These instructions constitute the immediate lifting of suspension of liquidation of entries for the merchandise and period listed above.

Customs liquidated the entry on May 24, 2002, at a duty rate of $.0035 per kilogram of the entered weight and with respect to the dumping duty, at a rate of 9.92% of the entered value of the goods.

ISSUE:

Whether the Customs Form 19 and accompanying document constitute a valid protest under 19 U.S.C. §1514?

LAW & ANALYSIS:

The protestant asserts that it filed a valid protest, number 1303-02-100253, on October 25, 2002 and that the letter dated January 16, 2003, was a supplement to the protest.

The instant CF 19 and memorandum were filed, within 90 days of the date of mailing of the notice of demand on the surety for payment against its bond. (19 USC § 1514(c)(3)(B)).

Section 1514(c)(1) requires that a protest shall set forth:

Distinctly and specifically each decisionas to which protest is made; each category of merchandise as to which protest is made; and the nature of each objection and reasons therefore.

The relevant implementing regulation, 19 C.F.R. § 174.13(a)(6), provides that a protest shall contain a description of “the nature of, and justification for the objection set forth distinctly and specifically with respect to each category, payment, claim, decision, or refusal.”

In this instance, the October 23, 2002, memorandum, does not provide any specific information or make a specific assertion as to the nature of the objection. In Washington Int’l Ins. Co. v. United States, 16 CIT 599 (1992), a case where the “classification and rate and amount of duties” was stated as the basis of a protest claim, the Court of International Trade held that a valid protest was not filed and that “Any other ruling by this court would eviscerate the protest requirements mandated by Congress and effectively require Customs to scrutinize the entire administrative record of every entry in order to divine potential objections and supporting arguments which an importer meant to advance.” Similarly in this case, the protestant included in its list of possible claims, every possible protestable issue under 19 U.S.C. §1514(a), and then stated the protest should not be limited to those claims on the list. With only these statements, it is not possible for CBP to infer the “nature of, and justification for the objection” as required by 19 C.F.R. § 174.13(a)(6). The court in Washington Int’l went on to quote the Supreme Court in Davies v. Arthur, 96 U.S. 147, 151 (1878), in holding that the protest specificity requirements were structured to:

Compel [the importer] to disclose the grounds of his objection at the time when he makes his protest Technical precision is not required; but the objections must be so distinct and specific, as, when fairly construed, to show that the objection taken at the trial was to the time in the mind of the importer, and that it was sufficient to notify the collector of its true nature and character to the end that he might ascertain the precise facts, and have an opportunity to correct the mistake and cure the defect, if it was one which could be obviated.

See Washington Int’l at 602.

The Court of Appeals for the Federal Circuit also held in Koike Aronson Inc. v. U.S., 165 F.3d 906 (Fed. Cir. 1999), a case where the Protestant stated only that the protest is made against Customs’ assessment of duties on the identified entries, that the protest failed to satisfy the statutory or regulatory requirements of validity. The court found that the protest did “not state either ‘the nature of each objection and the reasons therefore,’ 19 U.S.C. § 1514(c), or the ‘justification for [each] objection set forth distinctly and specifically,’ 19 CFR §174.13(a)(6).” (Koike at 908). The Protestant in this instance has also not stated the nature of the objection, the reason or the justification for changing the CBP demand notice.

Copying the entire list of protestable claims from the relevant statute, 19 U.S.C. §1514, asserting that those claims may be filed with regards to any entry without specifying The objection to the bill does not state the nature and character of the claim.

Because the CF 19 and memorandum are a valid protest, the January 16, 2004 “Supplemental letter” cannot be considered a supplement to a valid protest. New grounds against a CBP action can only be proffered “in support of objections raised by a valid protest.” 19 U.S.C. § 1514(c)(1). Therefore, the January 16, 2004 letter, its claims and assertions, cannot cure the deficiency.

In Fujitsu General America, Inc. v. U.S., 283 F.3d 1364 (Fed. Cir. 2002), the Court of Appeals for the Federal Circuit held that deemed liquidation claims had not been raised timely under 19 U.S.C. §1514 when the original protest raised only issues of interest assessment and when, after the 90 day statutory limitation, the protestant attempted to supplement with a claim that the entries had been deemed liquidated. (Fujitsu at 1369). Similarly, filing a document that simply lists the words “liquidation or re-liquidation of an entry or reconciliation, or any modification thereof including issues as to timeliness of such action” does not state the nature of the objection required by 19 U.S.C. 1514(c)(1)(c). That is, those words did not contain any allegation that the liquidation was barred by a prior liquidation by operation of 19 U.S.C. 1504. Consequently the documents filed on October 25, 2002, were not a valid protest. Under the rule in Fujitsu General, the failure to file a valid protest precludes the ability to correct that deficiency by a submission that raises the objection filed after the 90-day protest period expired.

The Customs Form 19 and the memorandum of October 25, 2002, do not meet the requirements of a valid protest in accordance with 19 U.S.C. §1514. In the absence of a timely protest, the liquidation therefore became final.

Even if the documents filed on October 25, 2002 and January 16, 2003 constituted a valid protest asserting a deemed liquidation, that protest would be denied. The Protestant argues in the January 16, 2003, letter that the suspension of liquidation of the entries had been removed on October 17, 2001, by the publishing of the Notice of Final Results, 66 Fed. Reg. 52744, and that therefore the entries deemed liquidated on April 17, 2002, at the antidumping duty rate entered.

Pursuant to 19 U.S.C. §1504(d), as amended in 1994:

Except as provided in section 1675(a)(3) of this title, 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 (other than an entry with respect to which liquidation had been extended under subesection (b) of this section) 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.

(emphasis added). As amended, section 1675(a)(1) and (3) provide, in pertinent part:

§ 1675 Administrative review of determinations (a) Periodic review of amount of duty
(1) In general
At least once during each 12 month period beginning on the anniversary date of publication of . . . an antidumping duty order under this subtitle or a finding under the Antidumping Act, 1921, or notice of the suspension of an investigation, the administering authority, if a request for such a review has been received and after publication of notice of such review in the Federal Register, shall—

(B) review, and determine (in accordance with paragraph (2), the amount of any antidumping duty, and (C) review the current status of, and compliance with, any agreement by reason of which an investigation was suspended, and review the amount of any net countervailing subsidy or dumping margin involved in the agreement, and shall publish in the Federal Register the results of such review, together with notice of any duty to be assessed, estimated duty to be deposited, or investigation to be resumed. . . .

(3) Time limits
(B) Liquidation of entries
If the administering authority orders any liquidation of entries pursuant to a review under paragraph (1), such liquidation shall be made promptly and, to the greatest extent practicable, within 90 days after the instructions to Customs are issued. In any case in which liquidation has not occurred within the 90-day period, the Secretary of Treasury shall, upon the request of the affected party, provide an explanation thereof.

(C) Effect of pending review under section 1516a In a case in which a final determination under paragraph (1) is under review under section 1516a of this title and a liquidation of entries covered by the determination is enjoined under section 1516a(c)(2) of this title or suspended under section 1516a(g)(5)(C) of this title, the administering authority shall within 10 days after the final disposition of the review under section 1516a of this title, transmit to the Federal Register for publication the final disposition and issue instructions to the Customs Service with respect to liquidation of entries pursuant to the review. In such a case, the 90-day period referred to in subparagraph (B) shall begin on the day on which the administering authority issues such instructions.

Sections 1504(d) and 1675(a)(3)(B) are directed to liquidation of entries and contain parallel provisions. Section 1504 is entitled “Limitation on liquidation”, and subsection (d) is entitled “Removal of suspension” which provides that “when a suspension . . . is removed, the Customs Service shall liquidate the entry . . . within 6 months after receiving notice of removal. . . .Any entry . . . not liquidated by the Customs Service within 6 months after receiving such notice shall be. . .” deemed liquidated at the deposit rate. Section 1675(a)(3)(B), entitled “Liquidation of entries”, provides that “any liquidation of entries,” subject “to review under paragraph 1,” i.e. to an administrative review, “shall be made promptly and, to the greatest extent practicable, within 90 days after instructions to Customs are issued.” If “liquidation has not occurred within that 90 day period, the Secretary of Treasury shall, upon request of the affected party, provide an explanation thereof.” Section 1675(a)(3)(B).

Because the subject entries were subject to administrative review, the liquidation provisions set forth in section 1675(a)(3)(B) apply to the entries. However, because the consequences of failing to timely liquidate under the two statutes are different, i.e. deemed liquidation under section 1504 versus explanation of the delay in liquidation under section 1675(a)((B)(3), we need to determine whether section 1504(d) applies to entries that are subject to provisions of section 1675(a)(3)(B). When Congress amended section 1675(a)(3) in 1994, it also amended section 1504 to prevent these provisions from overlapping. After describing the amendment of section 1675(a)(3), the congressional reports state the purpose of the amendment to section 1504:

Section 220(c) of H.R. 5110 makes conforming changes to section 504 of the Act [19 U.S.C. § 1504], a provision which establishes general rules regarding the liquidation of customs entries.

H.R. Rep. No. 826 pt. 1, Uruguay Round Agreements Act (“URAA”), 103rd Cong., 2d Sess. (1994).

Section 220(c) of the implementing bill makes conforming changes to section 504 of the 1930 Tariff Act [19 U.S.C. § 1504], which establishes the general rules governing the liquidation of entries.

S. Rep. No. 103-412, pt. 1, URAA, 103rd Cong., 2d Sess. (1994). Both congressional reports thus described section 1504 as establishing general rules governing the liquidation of entries, and the amendment as conforming section 1504 to section 1675(a)(3).

The 1994 amendment added the language, “except as provided in section 1675(a)(3) . . .,” to the first sentence of section 1504(d). “Except” is defined in lexicons as follows:
except . . .vt 1: to take or leave out (something) from a number or a whole: exclude or omit (as from consideration) . . .
except . . .prep. . . .1: with the exclusion or exception of , : save . . .

Webster’s Third New International Dictionary, 791(1981).
except . . . v.t. To leave or take out: exclude; omit.-v.t. To object; take exception: with to. –prep. With the exception of ; excluding; leaving out; save; but: Tell no one except me. . . .

Funk & Wagnalls New International Dictionary, 442 (1987).

The plain meaning of the 1994 amendatory language, therefore, is that it excepts, excludes, omits, takes out or leaves out an entry from coverage under section 1504(d) when the entry is subject to the provisions of section 1675(a)(3), such as the subject entries. Thus, the amendatory language creates an exception from coverage under section 1504(d) for entries that are administratively reviewed and subject to the liquidation provisions of section 1675(a)(3). Consequently, section 1504(d) does not apply to the subject entries, and the entries were not deemed liquidated.

The protestant’s arguments assume the application of section 1504(d), rather than section 1673(a)(3), to the entries. Although for the reasons already stated those do not apply, in the interest of a complete response, we will address those arguments.

The protestant argues that the Notice of Final Results, 66 Fed. Reg. 52744, dated October 17, 2001, constituted the notice to CBP of the removal of the suspension of liquidation.

In International Trading the Federal Circuit held that a proper notice of removal must be unambiguous. It found that notice the Department of Commerce published in the Federal Register of the results of its final review, which included both (1) an express statement that suspension was lifted and (2) the rate of antidumping duties to be assessed, was adequate notice or removal from suspension. It further found that providing an antidumping duty rate may also be notice of removal. “It is fair to conclude that ‘notice’ of the duty to be assessed is notice to the importer, which will have to pay the duty and to Customs, which will have to impose it.” Id. at 1276. The court found in Fujitsu General Am., Inc. v. United States, 283 F.3d 1364 (Fed. Cir. 2002), that the notice of removal does not need to include an express statement that “suspension is lifted,” but providing an antidumping duty rate is adequate. Thus, where there is a lack of an express statement that suspension is lifted, a sufficient notice of removal from suspension should at least include the antidumping duty rate to be assessed.

The instructions must be unambiguous; the Notice here was not. First, it does not directly apply to the subject entries. These results though, only determine the weighted-average “margin” for the subject entries. According to 19 CFR 351.212(b) the antidumping margin is only one variable used to determine the antidumping rate. The relevant regulation, 19 CFR 351.212(b), states:

Assessment of antidumping and countervailing duties as the result of a review. (1) Antidumping duties. If the Secretary has conducted a review of an antidumping order under § 351.213 (administrative review), § 351.214 (new shipper review), or § 351.215 (expedited antidumping review), the Secretary normally will calculate an assessment rate for each importer of subject merchandise covered by the review. The Secretary normally will calculate the assessment rate by dividing the dumping margin found on the subject merchandise examined by the entered value of such merchandise for normal customs duty purposes. The Secretary then will instruct the Customs Service to assess antidumping duties by applying the assessment rate to the entered value of the merchandise.

Therefore, the 10.45% margin listed in the Federal Register notice, divided by the entered value of the subject merchandise entered on a national scale for the entire duration of the period reviewed results in the Secretary of Commerce’s determination of the antidumping duty rate. In this instance, the assessed duty was 9.92% of the entered value, rather than the margin rate of 10.45% of the value. It is this antidumping duty rate that must be unambiguous according to International Trading.

The Notice of Final Results, published on October 17, 2001, was not adequate notice to CBP to remove suspension of liquidation for the protested entries.

As the courts established in International Trading and Fujitsu, the notice that suspension of liquidation has been lifted must be unambiguous. This Notice of Final Results is not unambiguous.

HOLDING:

The Customs Form 19 and accompanying documents do not constitute a valid protest under 19 U.S.C. §1514, and therefore, absent a timely filed protest, the liquidations became final.

The protest is therefore denied.

In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), 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 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.cpb.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon
Director, Commercial Rulings Division

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