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HQ 229981

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May 10, 2005

LIQ-4-01;11 RR:CR:DR 229981 LLB

Category: LIQUIDATION

Customs and Border Protection
Attn: Constance Price
P.O. Box 52-3215
Miami, FL 33152

RE: Protest/AFR No. 5201-02-100647; deemed liquidation; 19 U.S.C. § 1504(d)

Dear Ms. Price:

The above-referenced protest was forwarded to this office for further review. We have considered the arguments raised by the protestant, FAG Holdings, and your office. Our decision follows.

Facts

This protest involves an entry of radial ball bearings from Germany made on February 3, 1993. The merchandise was the subject of an antidumping order issued by the Department of Commerce (Commerce) which stated that the merchandise was subject to a dumping margin of 70.41%. See Antidumping Orders: Ball Bearings, Cylindrical Roller Bearings, and Spherical Plain Bearings and Parts Thereof From the Federal Republic of Germany, 54 Fed. Reg. 20900 (May 15, 1989). However, subsequent to the order and prior to the protestant’s entry of its merchandise, Commerce directed CBP to collect cash deposits on ball bearings manufactured by FAG Holdings at a dumping margin of 17.24%. According to the Automated Commercial System, the cash deposit on the entry was fully paid.

In 1993, Commerce initiated a review of anti-friction bearings from, inter alia, Germany for the relevant period of May 1, 1992 through April 30, 1993. See Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, Germany, Italy, Japan, Singapore, Sweden, Thailand, and the United Kingdom; Initiation of Antidumping Administrative Reviews and Notice of Request for Revocation of Order (In Part), 58 Fed. Reg. 34563 (June 28, 1993). On February 28, 1995, Commerce published its final results, as amended, of the administrative review for the subject period, indicating the dumping margin for the subject merchandise as 11.80%. See Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, et al; Final Results of Antidumping Duty Administrative Reviews, Partial Termination of Administrative Reviews and Revocation of Antidumping Duty Orders, 60 Fed. Reg. 10900 (February 28, 1995).

The protestant appealed Commerce’s final determination in the Court of International Trade (CIT). See INA Walzlager Schaeffler KG, et al. v. United States, 957 F. Supp. 251 (Ct. Int’l Trade 1997). The CIT enjoined liquidation of anti-friction bearings from Germany and imported by the protestant. See Message No. 5165112 (June 14, 1995). The CIT ordered Commerce to recalculate the margins for FAG. See INA Walzlager, 957 F.Supp. at 262. The CIT affirmed Commerce’s remand results and the case was dismissed. Id. One of the plaintiffs in the foregoing case appealed to the Federal Circuit; however, the protestant did not appeal the CIT’s decision. See SKF USA, Inc. v. INA Walzlager Schaeffler KG, 180 F.3d 1370 (Fed. Cir. 1999).

On November 16, 2001, Commerce published notice of the CIT and Federal Circuit’s decision in the Federal Register. See Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof from Germany; Notice of Amended Final Results of Antidumping Duty Administrative Reviews Pursuant to Final Court Decision, 66 Fed. Reg. 57704 (November 16, 2001). The dumping margin listed therein for ball bearings produced by FAG was 9.38%. On November 28, 2001, Commerce issued instructions to CBP directing CBP to liquidate the subject merchandise at a dumping margin of 23.60%. See Message No. 1332206. Accordingly, on May 3, 2002, CBP liquidated the entry at a dumping margin of 23.60%.

On August 1, 2002, the protestant timely filed

The protestant filed its protest on August 1, 2002, which is within 90 days of the May 3, 2002, liquidation date. See 19 U.S.C. § 1514(c)(3)(A). its protest and application for further review arguing that the entry liquidated by operation of law.

Issue

Whether the entry liquidated by operation of law.

Law and Analysis

The protestant argues that the subject entry was deemed liquidated pursuant to § 1504(d), at the rate and amount of duty deposited at the time of entry. Pursuant to 19 U.S.C. 1504(d),

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 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.

19 U.S.C. § 1504(d)(Supp.V 1993). Courts have interpreted § 1504(d) to require that suspension of liquidation be removed and CBP be notified thereof before liquidation by operation of law occurs. Fujitsu General America, Inc. et. al v. United States, 110 F. Supp. 2d 1061, 1069 (Ct. Int’l Trade 2000), aff’d, 283 F.3d 1364 (Fed. Cir. 2002); International Trading Co. v. United States, 281 F.3d 1268 (Fed. Cir. 2002).

The protestant argues that suspension of the liquidation was removed on September 29, 1997, when the CIT issued its decision in INA Walzlager. In Fujitsu General, the Federal Circuit held that suspension of liquidation is removed when a final decision has been reached on the matter, that is, when “all possible appeals are exhausted,” thus, suspension of liquidation is removed, when the time for appeal expires. 283 F.3d at 1379. FAG had 60 days from the date that the CIT issued its order in INA Walzlager to file its appeal. See Fed. R. App. P. 4(a)(1)(B). The protestant has not provided this office with a copy of the court’s order; however, assuming the order was issued on the same day, the protestant’s time for appeal expired on November 29, 1997. Therefore, pursuant to Fujitsu General, suspension of liquidation, at the earliest, was removed on November 29, 1997.

Next, the protestant argues that CBP received notice of the CIT’s decision INA Walzlager, “and therefore of the removal of the suspension of liquidation, no later than October 22, 1997, the date a copy of the decision was published by CBP in the Customs Bulletin and Decisions, Volume 31, No. 43, at p. 147.” As stated above, the earliest suspension of liquidation could have been removed was November 29, 1997 when the protestant’s appeal rights expired. Thus, publication of the CIT’s decision in the Customs Bulletin on October 22, 1997, could not have served as notice of an event that was yet to occur.

Last, an argument similar to the protestant’s argument was rejected in Fujitsu General. In Fujitsu General, the plaintiff argued that the subject decision was “available in a wide variety of commercially available print and electronic media, thus providing Customs with notice for purposes of 19 U.S.C. § 1504(d).” 283 F.3d at 1379-80. The Federal Circuit stated that such an argument neglected the requirement in § 1504 that CBP 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.” Id. at 1380. Therefore, the court held that general print or electronic media publication did not satisfy the notice requirement in § 1504(d). Id. Cf. NEC Solutions (America), Inc. v. United States, 2003 Ct. Int’l Trade Lexis 80; Slip Op. 2003-80 (July 9, 2003)(holding that CBP publication of an electronic message from Commerce which lifted suspension of liquidation on the Customs and Border Protection Bulletin Board constituted notice for purposes of 19 U.S.C. § 1504(d), appeal argued, No. 04-1085 (Jan. 12, 2005). NEC Solutions is distinguishable from the facts in Fujitsu General and in the current case because the electronic communication in NEC Solutions was received by CBP from Commerce whereas in the present case and in Fujitsu General, the decision was not a notice from Commerce that removed suspension of liquidation.

Further, the court held that since there was no earlier date to qualify as the requisite notice date under § 1504(d), the date Commerce published notice of the decision in the Federal Register would satisfy the notice requirement and insofar as CBP liquidated the entry within 6 months of that date, the entries did not deem liquidate. Id. at 1380-81.

Here, similar to Fujitsu General, there is no earlier date to qualify as requisite notice under § 1504(d), thus, the date Commerce published notice of the CIT’s decision in the Federal Register on November 16, 2001, would satisfy the notice requirement under § 1504(d). 66 Fed. Reg. 57704 (November 16, 2001). Insofar as CBP liquidated the subject entry on May 3, 2002, within 6 months of November 16, 2001, the entries did not liquidate by operation of law. The protestant mentions that pursuant to 19 U.S.C. § 1675(a)(3)(C), Commerce was required to publish the CIT’s decision within 10 days of the order.

Holding

The entry did not liquidate by operation of law insofar as CBP liquidated the entry within 6 months pursuant to 19 U.S.C. § 1504(d).

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
Commercial Rulings Division

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