United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 2004 HQ Rulings > HQ 230284 - HQ 545536 > HQ 230503

Previous Ruling Next Ruling
HQ 230503





September 9, 2004

LIQ-4-01/ LIQ-11 RR:CR:DR 230503 MK

Port Director
Port of Newark, New York
C/O Protest and Control Section
1100 Raymond Blvd,
Suite 402
Newark, NJ 07102

RE: Protest number 4601-04-100386; Bearings Limited; Misapplication of Commerce Instructions

Dear Port Director:

The above-referenced protest was forwarded to this office for further review. We have considered the evidence provided and the arguments made by the Protestant, as well as Customs and Border Protection’s records relating to this matter. Our decision follows.

FACTS:

Between July 20, 2001 and April 2, 2002, Bearings Limited (“BL”) made twelve entries of radial ball bearings (“BB”) from Japan. The Customs Form (“CF”) 7501 for these entries indicate that all the BB were entered subject to antidumping case number A-588-201 and regular and antidumping duties were deposited. Therefore, a sample entry will be used for this analysis: according to the CF 7501 entry summary, entry 812-0 consists of twelve lines of goods, all classified under subheading 8482.10.50, Harmonized Tariff Schedule United States (“HTSUS”). The entry was made on October 25, 2001. Two lines of goods were subject to antidumping duty case number A-588-201-005, with Koyo shown as the manufacturer. For these goods the importer deposited the estimated regular 9.0% ad valorem duty and estimated antidumping duty at a 10.10% ad valorem rate. Four lines of the goods were subject to antidumping duty case number A-588-201-008, with NSK shown as the manufacturer. For these goods the importer deposited the estimated regular 9.0% ad valorem duty and deposited an estimated antidumping duty at a 4.22% ad valorem rate. The file includes an invoice, number 101-383, dated September 29, 2001, on Terashi Sangyo Co., Ltd. letterhead addressed to BL for the purchase of assorted bearings of Japanese origin, including a number by NSK and Koyo.

On May 15, 1989, DOC issued Antidumping Duty Orders: Ball Bearings, Cylindrical Roller Bearings, and Spherical Plain Bearings, and Parts Thereof From Japan, (54 Fed. Reg. 20904). It states that “U.S. Customs officers must require a cash deposit equal to the estimated weighted- average dumping margins noted below for entries of ball bearings. from Japan Manufacturers/ Producers/ Exporters Koyo, 73.55 percent, NSK, 42.99 percent.”

On June 25, 2002, DOC issued Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, (67 Fed. Reg. 42753). It states, “we are initiating administrative reviews of the following antidumping and countervailing duty orders and findings Antifriction bearings Proceedings and Firms Japan: A-588-804, 5/1/01- 4/30/02, Koyo Seiko Co., Ltd., Ball NSK Ltd., Ball.”

On June 16, 2003, DOC issued Ball Bearings and Parts Thereof From France, Germany, Italy, Japan, and Singapore: Final Results of Antidumping Duty Administrative Reviews, (68 Fed. Reg. 35623). It states, “We determine that the following percentage weighted-average margins on ball bearings exist for the period of May 1, 2001, through April 30, 2002: Japan: Koyo, 4.98% NSK, Ltd., 2.68%.”

On September 5, 2003, Message number 3248203, was issued to the Directors of Field Operations and Port Directors regarding ball bearings and parts thereof from Japan. It states:

For all shipments of ball bearings and parts thereof from Japan produced by Koyo, exported or sold (as indicated on the commercial invoice or other Customs entry documentation) by Taisei Industries, Ltd., imported or sold (as indicated on the commercial invoice or other customs entry documentation) to Bearings Limited, and entered or withdrawn from warehouse for consumption during the period 05/01/2001 through 04/30/2002, assess antidumping liabilities equal to the percentages listed below of the entered values.

Manufacturer: Koyo
Product: Ball Bearings, A-588-201-005
Importer or Customer: Bearings Limited, 73.55%

For all shipments of ball bearings and parts thereof from Japan produced by NSK Ltd., exported or sold (as indicated on the commercial invoice or other Customs entry documentation) by Taisei Industries, Ltd., imported or sold (as indicated on the commercial invoice or other customs entry documentation) to Bearings Limited, and entered or withdrawn from warehouse for consumption during the period 05/01/2001 through 04/30/2002, assess antidumping liabilities equal to the percentages listed below of the entered values.

Manufacturer: NSK Ltd.
Product: Ball Bearings, A-588-201-008
Importer or Customer: Bearings Limited, 73.55% These instructions constitute the immediate lifting of suspension of liquidation of entry summaries for the merchandise and periods listed above.

CBP liquidated the entries, subject to increased antidumping duties, on November 14, 2003. BL filed a protest on February 5, 2004.

ISSUE:

Whether CBP’s liquidating the entries with increased antidumping duties is an error correctable under 19 U.S.C. §1520(c)(1)?

LAW & ANALYSIS:

The relevant statute, 19 U.S.C. 1520 (c)(1) of the United States Code states:

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 a clerical error, mistake of fact, or other inadvertence not amounting to an error in the construction of a law, adverse to the importer and manifest from the 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 or exaction.

According to the statute, the protestant must first demonstrate that there was a clerical error, mistake of fact or other inadvertence. The protestant asserts that the port did not liquidate the subject entries in accordance with Message 3248203, issued on September 5, 2003. The Protestant asserts that the instructions were misread to include the subject entries in the liquidation instructions. The liquidation instructions state four requirements for the instructions to apply: (1) that the shipment of ball bearings and parts thereof from Japan are produced by Koyo or NSK Ltd.; (2) that they are exported or sold (as indicated on the commercial invoice or other Customs entry documentation) by Taisei Industries, Ltd.; (3) that they are imported or sold to BL; and (4) that they are entered or withdrawn from warehouse for consumption during the period from May 1, 2001 through April 30, 2002.

In the instant case the commercial invoices state that the subject ball bearings were purchased from either Koyo or NSK, Ltd. The commercial invoices and Customs entry documentation does not state that Taisei Industries, Ltd, was involved in the transactions. For the sample entry the exporting company is Terashi Sangyo Co., Ltd., and other exporting companies include Kian Ho Bearings Ltd, Tokyo Trading Co., Ltd., and Ikeda Sangyo Co., Ltd. Taisei Industries, Ltd. does not appear to be involved in any of the subject importations. The second requirement of the liquidation instructions does not apply. The subject goods were imported to BL as required by the instructions. Finally, they were entered between June 2001 and April 2002, fulfilling the final requirement of the liquidation instructions. The second requirement of the liquidation instructions, that the ball bearings were exported or sold by Taisei Industries, Ltd., has not been met by these entries.

The 73.55% antidumping liabilities should not have applied to the subject entries. The entries should have been liquidated at the rate entered.

The second statutory requirement under 19 U.S.C. 1520(c)(1) is that the clerical error or inadvertence is adverse to the importer. The rates deposited at entry were all less than the 73.55% that was incorrectly assessed as a result of these liquidation instructions. Therefore, by assessing increased duties, the mistake was adverse to the importer.

The error must also be manifest from the evidence. The import specialist cited message 3248203 as having provided the liquidation instructions. This message provides four requirements for the instructions to apply. Although three of these four requirements are met, the fourth is not: there is no evidence or documentation that Taisei Industries, Ltd. was involved with the subject entries. The error in the application of the instructions is manifest from the documents provided.

The statute also requires that the mistake of fact be “brought to the attention of the appropriate customs officer within one year after the date of liquidation.” In this case, the error was brought to the attention of CBP when the earlier protest was filed, February 5, 2004. This is within one year of the November 14, 2003 liquidation.

The statutory requirements of 19 U.S.C. 1520(c)(1) have been met, and therefore this protest should be granted.

HOLDING:

CBP’s liquidating the entries with increased antidumping duties is an error correctable under 19 U.S.C. §1520(c)(1).

This protest is GRANTED.

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

Previous Ruling Next Ruling

See also: