HQ 230284 - Protest number 3195-02-100085; antidumping duty; liquidation instructions; Dynamic Random Access Memory Semiconductors; DRAMS; 19 U.S.C. § 1514. - United States International Trade Commision Rulings

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HQ 230284

May 18, 2004

LIQ-4-01; PRO-2-02 RR:CR:DR 230284 RDC

CATEGORY: PROTEST

Bureau of Customs and Border Protection
Port Director
Area Port of Anchorage
605 West Fourth Ave Room 203
Anchorage, Alaska 99501

RE: Protest number 3195-02-100085; antidumping duty; liquidation instructions; Dynamic Random Access Memory Semiconductors; DRAMS; 19 U.S.C. § 1514.

Dear Port Director:

The above-referenced Protest was forwarded to this office for further review and received on January 9, 2004. We have considered the points raised by your office and the Protestant. Our decision follows.

FACTS:

Stealth Components, Inc., (Stealth), protests the antidumping duty rate applied to 36 entries of Dynamic Random Access Memory Semiconductors, (DRAMS). Fritz Companies, Inc., (Fritz), was the importer of record and Stealth was the ultimate consignee for the DRAMS which were subject to antidumping duty order A-580-812, DRAMS of One Megabit or Above from the Republic of Korea. According to Stealth, “the DRAMS contained in the entries at issue were manufactured by either Hyundai Electronics Industries Co., Ltd., (Hyundai), or LG Semicon Co. Ltd., (LG Semicon), and exported to the United States by a third party reseller.”

On September 23, 1998, the Department of Commerce, (DOC), published a Notice of Final Results of Antidumping Duty Administrative Review (63 Fed. Reg. 50,867) with respect to antidumping case A-580-812, DRAMS from Korea. That review included the manufacturers / exporters of DRAMS, Hyundai and LG Semicon. This notice provided the cash deposit rate for entries of DRAMS subject to case A-580-812 as of September 23, 1998, until the publication of the final results of the next administrative review. The margin for Hyundai was 3.95, and the margin for LG Semicon was 9.28.

On October 23, 1998, the DOC published a Notice of Amended Final Results of Antidumping Duty Administrative Review with regard to DRAMS from Korea (63 Fed. Reg. 56,906). This notice stated that the weighted-average margin percentage with respect to LG was amended to 9.04. This rate would remain in effect until publication of the final results of the next administrative review. The protested entries were made from November 4, 1998, to April 28, 1999. The final results of the next administrative review were published on December 14, 1999, (64 Fed. Reg. 69,694).

On November 15, 2000, a Notice of Final Results of Antidumping Duty Administrative Review for DRAMS from Korea for entries during the period April 1, 1998, through, May 30, 1999, was published (65 Fed. Reg. 68,976). This Notice provided that the percentage weighted-average margins for LG Semicon was 1.18 percent, and for Hyundai, 2.30 percent. This notice also directed CBP to assess antidumping duty upon liquidation of the entries of DRAMS as directed by the DOC’s determinations.

On September 17, 2001, Message number 1260205, containing liquidation instructions for entries of DRAMS from Korea and produced by Hyundai, was issued by the DOC to CBP. This message instructed CBP to assess antidumping duties at the cash deposit rate in effect on the date of entry summary on DRAMS produced by Hyundai and entered during the period May 1,1998, through April 30,1999. Message Number 1260206 was also issued September 17, 2001, and contained liquidation instructions for entries of DRAMS from Korea produced by LG Semicon and imported by other entities. For entries made during the period May 1,1998, through April 30,1999, CBP was directed to assess antidumping duties at the cash deposit rate in effect on the date of entry summary.

The only evidence of the protested entries provided are the entry documents for entry number 110-xxxxx14-2. The CF 7501, entry summary, for entry 110-xxxxx14-2 covered 17,000 DRAMS and shows the importer of record to be Fritz and the ultimate consignee to be Stealth. The country of origin is shown as Korea and the entry date is November 11, 1998. The antidumping case is shown as A-580-812-001 (001 is the suffix indicating the manufacturer was LG Semicon). The entry summary also shows that CBP advanced the value of the DRAMS from the declared .30 cents per unit to $1.02 per unit; the antidumping duty also was advanced accordingly. The invoice attached to the entry summary, number CT 9811041, dated April 11, 1998, shows that 17,000 DRAMS were sold by Carton Technology Limited, Hong Kong, to Stealth. The unit price and total purchase price also have been adjusted on the invoice to reflect the value advance.

According to Customs Automated Data Collection System, (ACS), entry number 110-xxxxx14-2 was liquidated on February 22, 2002, and antidumping duty of 9.04 percent of the value was assessed. Further, the following protested entries, chosen at random from the list of protested entries, were liquidated with antidumping duty of 9.04 percent on these respective dates: 110-xxxxx49-9 (February 15, 2002); 110-xxxxx85-7 (March 15, 2002; 110-xxxxx27-1 (February 22, 2002); 110-xxxxx47-3 (March 15, 2002); 110-xxxxx90-5 (February 22, 2002).

The instant Protest, 3195-02-100085, was received by the Port on May 16, 2002. The Protest was forwarded to the DOC for comment. On October 23, 2003, a representative from the DOC, International Trade Administration, Antidumping and Countervailing Duty Enforcement, advised CBP that the protested entries, in accordance with the issued liquidations instructions, should have been liquidated at the cash deposit rate in effect at the time of entry. Protest 3195-02-100085 was forwarded to this office for further review.

ISSUE:

Were the liquidation instructions from the DOC correctly applied to the Protested entries by CBP?

LAW AND ANALYSIS:

Section 1514 of Title 19 provides that the proper filing of a protest is an exception to the finality of certain, enumerated “decisions of [Customs and Border Protection]” (19 U.S.C. § 1514(a)). Unless a protest is properly and timely filed, these decisions become “final and conclusive” upon all parties, including CBP (Id.). Per 19 U.S.C. § 1514(a) the only CBP decisions which are subject to this exception from finality are:

(1) the appraised value of merchandise;
(2) the classification and rate and amount of duties chargeable; (3) all charges or exactions of whatever character within the jurisdiction of the Secretary of the Treasury; (4) the exclusion of merchandise from entry or delivery or a demand for redelivery to customs custody under any provision of the customs laws, except a determination appealable under section 337 of this Act [19 USCS § 1337]; (5) the liquidation or reliquidation of an entry, or reconciliation as to the issues contained therein, or any modification thereof; (6) the refusal to pay a claim for drawback; or (7) the refusal to reliquidate an entry under subsection (c) or (d) of section 520 of this Act [19 USCS § 1520];

(19 U.S.C. §§ 1514(a)(1)-(7)). With regard to the first contention, the Protestant objects to the rate at which antidumping duties were assessed on the entries and states that the entries should have been liquidated at “Hyundai’s’ and LG’s respective final antidumping margin rate” 2.3 percent and 1.18 percent, as stated in the November 15, 2000, Notice of Final Results of Antidumping Duty Administrative Review for DRAMS from Korea (65 Fed. Reg. 68,976, November 15, 2000).

In Mitsubishi Electronics the CAFC held that “Customs has a merely ministerial role in liquidating antidumping duties” (Mitsubishi Electronics America, Inc. v. United States, 44 F.3d 973, 977 (Fed Cir. 1994)). Customs simply takes the dumping margin determined by Commerce and applies it to the entries as directed by Commerce's instructions. Accordingly, while both CBP and Commerce play a part in the enforcement of the antidumping laws, their roles are separate and distinct. Thus, CBP’s role with regard to antidumping duties is simply to follow Commerce's instructions in collecting deposits of estimated duties and assessing antidumping duties at the time of liquidation according to the DOC instructions.

Moreover, only the decisions made by CBP are protestable per Fujitsu Ten Corp. v. United States, 957 F. Supp. 245; Ct. Intl. Trade 1997). In Fujitsu Ten the plaintiff protested Customs' liquidation of entries without refunding estimated antidumping duties, Commerce's failure to continue suspension of liquidation pending the outcome of a scope inquiry, and that the importer was required to deposit antidumping duties because the antidumping order “on its face” did not apply to its entered goods. In Fujitsu Ten the Court of International Trade, (CIT), held,

The plain language of sections 1514(b) and 1516a, however, forecloses protest to Customs as a remedy here. In fact, section 1514(a), which delineates the issues that are protestable to Customs, itself excludes the matters described by subsection 1514(b) unambiguously:
except as provided in subsection (b) of this section . . . decisions of the appropriate customs officer . . . shall be final and conclusive upon all persons . . . unless a protest is filed in accordance with this section, or unless a civil action . . . is commenced in the United States Court of International Trade . . . .

19 U.S.C. § 1514(a) (1988) (emphasis added). Because Fujitsu's protests fall outside the exclusive statutory categories of protestable matters, they are a nullity. See Mitsubishi Electronics America, Inc. v. United States, 44 F.3d 973, 976 (Fed. Cir. 1994).

(Id. at 248-49.)

Whether the DOC’s liquidation instructions are correct falls “outside the exclusive statutory categories of protestable matters . . . .” (Id.) Therefore, this issue is not protestable per § 1514.

The second argument Stealth advances is that, per Consol. Bearings Co. v. United States, 166 F. Supp. 2d 580 (Ct. Int’l Trade 2001), order vacated, rev’d, remanded to CIT, 348 F.3d 997 (Fed. Cir. 2003); reh’g denied, (Fed. Cir. Dec. 30, 2003), the Department of Commerce’s issuance of the liquidation instructions applicable to the protested entries “is arbitrary and capricious.” However, this case cited as precedent was reversed. Subsequent to the filing of the instant Protest, the CIT’s decision in Consol. Bearings Co. was reversed by the Court of Appeals for the Federal Circuit, (CAFC), the CIT’s order vacated and the matter remanded to the CIT for disposition consistent with the Federal Court of Appeals’ decision. Further, that this second argument is against a DOC decision is evidenced by the facts in Consol. Bearings Co. v. United States. In that case, when asserting that the liquidation instructions at issue were arbitrary and capricious, the plaintiff importer moved for summary judgement against the Department of Commerce, not CBP.

In addition CBP “may not independently modify, directly or indirectly the determinations, [the Department of Commerce’s] underlying facts, or their enforcement” (Royal Business Machines Inc. v. United States, 507 F. Supp. 1007, 1014 n.18 (Ct. Int'l Trade 1980), aff'd, 69 C.C.P.A. 61, 669 F.2d 692 (CCPA 1982)). CBP has no authority to take any part in determining whether the DOC’s liquidation instructions are arbitrary and capricious. Therefore, the Protestant’s second issue is not protestable to CBP under 19 U.S.C. § 1514.

Finally, Stealth contends that the “Department [of Commerce]’s liquidations [sic] instructions are plainly inconsistent with its own published policy guidance.” This contention too clearly objects to a DOC decision and thus, is not protestable under § 1514. Since certain decisions made by CBP may be protested per 19 U.S.C. § 1514, Customs application of the DOC’s liquidation instructions, whether such instructions were correctly applied at liquidation, may be protested. See (American Hi-Fi International, Inc. v. United States, 19 C.I.T. 1340 (1995); Xerox Corporation v. United States, 289 F.3d 792 (U.S. App. 2002); HRL 229330 (March 12, 2002)). Consequently, the only issue we may address here is whether CBP correctly applied Commerce’s liquidation instructions to the protested entries.

We note initially that the instant Protest was timely filed, i.e., within 90 days of the liquidation of the entries (19 U.S.C. § 1514(c)(3)(B)). 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)). According to the Protestant, and supported by liquidation dates in ACS for some of the entries, the subject entries were liquidated on February 15, 2002, February 22, 2002, March 1, 2002 and March 15, 2002, and this Protest was received on May 16, 2002. In addition per 19 USC § 1514(c)(2)(A), a protest may be filed by “consignees shown on the entry papers.” The Protestant, Stealth, was the ultimate consignee of the DRAMS.

According to Stealth, the DRAMS at issue were manufactured by either Hyundai or LG Semicon and exported to the United States by a third party reseller. The supplied invoice from Carton Technology Limited attached to entry 110-xxxxx14-2 supports this assertion. The protested entries were made from November 4, 1998, to April 28, 1999. Thus, Message 1260205 containing the liquidation instructions for entries of DRAMS produced by Hyundai made between May 1, 1998, and April 30, 1999, applies to the protested entries of DRAMS manufactured by Hyundai. Further, Message Number 1260206 providing the liquidation instructions for entries of DRAMS produced by LG Semicon and entered during the period May 1, 1998, through April 30, 1999, applies to the protested entries of DRAMS manufactured by LG Semicon. Both of these messages instructed CBP to “assess antidumping duties at the cash deposit rate in effect on the date of entry summary.”

The entry summary for entry number 110-xxxxx14-2 shows antidumping case number A580-812-001. Since 001 is the suffix indicating the manufacturer was LG Semicon, this entry was liquidated in accordance with DOC’s liquidation instructions when it was liquidated assessing antidumping duty of 9.04 percent of the value. Except for entry 110-xxxxx14-2, no information with respect to the manufacturers of the DRAMS entered with the other protested entries has been provided. Therefore it cannot be determined here whether the liquidation instructions were correctly applied to the other protested entries. But, to the extent that the entries of DRAMS produced by LG Semicon were assessed antidumping duty of 9.04 percent and entries of DRAMS produced by Hyundai were assessed antidumping duty of 3.95 percent, the liquidation instructions were correctly applied to the Protested entries by CBP.

HOLDING: To the extent that the entries of DRAMS produced by LG Semicon were assessed antidumping duty of 9.04 percent and entries of DRAMS produced by Hyundai were assessed antidumping duty of 3.95 percent the liquidation instructions were correctly applied to the Protested entries by CBP.

The Protest should be DENIED in full. 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 CBP personnel, and to the public on the CBP 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 B. Harmon, Director

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