HQ 230076 - Protest number 4601-02-102668; 19 U.S.C. § 1504(d); 19 U.S.C. § 1514; radial ball bearings; antidumping duty; removal of suspension of liquidation; suspension of liquidation; deemed liquidation; liquidation by operation of law; notice to Customs; 19 C.F.R. § 159.1; 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); liquidation instructions. - United States International Trade Commision Rulings

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HQ 230076

February 6, 2006

LIQ-4-01; LIQ-11 RR:CR:DR
230076RDC

CATEGORY: PROTEST

Customs and Border Protection
Area Director, JFK International Airport Area c/o Chief, Liquidation and Protest Branch Building 77
Jamaica, New York 11430
Att: Lawrence Ryan

RE: Protest number 4601-02-102668; 19 U.S.C. § 1504(d); 19 U.S.C. § 1514; radial ball bearings; antidumping duty; removal of suspension of liquidation; suspension of liquidation; deemed liquidation; liquidation by operation of law; notice to Customs; 19 C.F.R. § 159.1; 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); liquidation instructions.

Dear Sir or Madam:

On July 28, 2003, the above-referenced Protest was forwarded to this office for further review. The Protestant also provided an additional submission dated September 11, 2003. We have considered the points raised by your office and the Protestant. Our decision follows.

FACTS:

The Protestant, Minolta Corporation, (“Minolta”), protests the liquidation of entry number 514-xxxxx20-6, which was assessed increased antidumping duty at liquidation. According to the provided CF 7501 for the protested entry, there are 54 lines of goods entered. Six lines of goods are subject to antidumping duty orders. Lines 12, 18 and 31 pertain to goods described as “radial ball bearings.” Lines 24, 37 and 44 pertain to goods described as “belts.” The date of entry is February 23, 1993, and the entry summary shows that the country of origin for all the goods was Japan.

According to Minolta, “the ball bearings on line 12 of the entry were manufactured by Fujikoshi Nachi.” The antidumping duty order applicable to these bearings, case number A-588-201-007, was subject to an administrative review for the period May 1, 1992, through April 30, 1993. (See Notice of initiation of antidumping duty administrative reviews (58 Fed. Reg. 34,563, June 28, 1993)). The final results of this administrative review were published on February 28, 1995, (60 Fed. Reg. 10,900) and were amended on March 31, 1995; May 15, 1995; June 13, 1995; June 29, 1995; December 19, 1995; and August 8, 1997; (see 60 Fed. Reg. 16,608, 60 Fed. Reg. 25,887, 60 Fed. Reg. 31,143, 60 Fed. Reg. 33,791, 60 Fed. Reg. 65,264, and 62 Fed. Reg. 42,745, respectively).

The final results of this administrative review with regard to manufacturer Fujikoshi Nachi (“Nachi”) were among those challenged in the Court of International Trade (CIT). With regard to Nachi, the CIT in NSK Ltd. v United States, 969 F. Supp. 34 (Ct. Int’l Trade 1997) remanded the results to the Department of Commerce (Commerce) to “correct clerical errors . . . (with respect to improper accounting for certain U.S. transactions) . . . .” (Id. at 66). This remand effectively ended the litigation with respect to Nachi (June 17, 1997).

The port states that Message number 2092209 contains the liquidation instructions applicable to line 12 (and 18). This message, issued 4/2/2002, states that it is relevant to case A-588-201, among others, for (Ball Bearings, Cylindrical Roller Bearings, and Spherical Plain Bearings) (AFBS) entered between May 1, 1992 and April 30, 1993. In relevant part, this message stated:

1. Below are the only liquidation instructions that have been Sent to date for AFBS (Ball Bearings, Cylindrical Roller Bearings, and Spherical Plain Bearings) from Japan for the Period 5/1/1992 through 4/30/1993: Company Date Message Number
Nachi 09/17/99 9260115
2. If you are still suspending liquidation on any entries of AFBS from Japan during the period 5/1/1992 through 4/30/1993 after applying all of the above liquidation instructions, you should now liquidate such entries at the deposit rate required at the time of entry of the merchandise.

Minolta contends that Message number 9260115, September 17, 1999, is applicable to line 12. This message provided liquidation instructions for AFBS imported by Nachi-America or Nachi Technology Inc.

According to Minolta, the ball bearings on line 18 were manufactured by NSK, (Nippon Seiko K.K.). The applicable antidumping case is CBP number A-588-201-008. The antidumping duty order applicable to these bearings was subject to the same administrative review as that on line 12 and the final results of this administrative review were the subject of the same litigation as the antidumping case applicable to line 12. In NSK Ltd. v United States, (4 F. Supp. 2d 1264 (Ct. Int’l Trade 1998)), the CIT affirmed Commerce’s “Final Results of Redetermination Pursuant to Court Remand” in their entirety. This decision was appealed to the CAFC with regard to the results concerning parties other than Nachi or NSK (“Koyo Seiko Co., Ltd. and Koyo Corporation of U.S.A. (together “Koyo Seiko”), Plaintiffs-Appellants NTN Bearing Corporation of America, American NTN Bearing Manufacturing Corp., NTN Corporation, NTN Driveshaft, Inc., and NTN-Bower Corporation (collectively “NTN”)” (see NSK Ltd. v. Koyo Seiko Co., (10 F.3d 1321 (Fed. Cir.)). Thus, with regard to NSK, the litigation involving the administrative review for the period May 1, 1992 through April 30, 1993 terminated with the decision in NSK Ltd. v United States, (4 F. Supp. 2d 1264 (Ct. Int’l Trade 1998)) on June 16, 1998.

Minolta states that Message number 1243202, dated August 31, 2001, contained the liquidation instructions applicable to the AFBS on line 18. This message was not released to the public. Message 1243202 contained liquidation instructions for antifriction bearings (other than tapered roller bearings) and parts thereof from Japan which were produced by NSK and imported by or sold to the companies listed during the period between May 1, 1992 and April 30, 1993. Minolta is not among those companies listed in the instructions. As stated above, the port states that Message number 2092209 contains the liquidation instructions applicable to lines 18 and 12. Customs applied these instructions to those lines when liquidating the entry and no changes were made to the antidumping duties on lines 12 and 18.

The September 13, 1999, Federal Register Notice, published subsequent to the decision in NSK Ltd. v United States, (4 F. Supp. 2d 1264 (Ct. Int’l Trade 1998)), contained the final results of administrative review after the remands and noted that there were final court decisions in the relevant cases. That Notice of Amended Final Results of Administrative Reviews stated in relevant part:

The United States Court of International Trade and the United States Court of Appeals for the Federal Circuit have affirmed the Department of Commerce's final remand results affecting final assessment rates for the administrative reviews of the antidumping duty orders on antifriction bearings (other than tapered roller bearings) and parts thereof from France, Italy, Japan, . . . . As there is now a final and conclusive court decision in these cases (with the exception of the case on Japan for which certain decisions are on appeal to the Court of Appeals for the Federal Circuit), we are amending our final results of reviews and we will instruct the U.S. Customs Service to liquidate entries subject to these reviews with the exception of those still under appeal.

(64 Fed. Reg. 49,442, 49,443.) The Notice stated further,
we are now amending the final results of administrative reviews of the antidumping duty orders on antifriction bearings (other than tapered roller bearings) and parts thereof from France, Italy, Japan, Singapore, Sweden, Thailand, and the United Kingdom, except for those cases still under appeal, for the period May 1, 1992, through April 30, 1993. The revised weighted-average margins are as follows: [Manufacturer]
[Fujikoshi] Nachi: 12.46
NSK 16.10
Accordingly, the Department will determine and the U.S. Customs Service will assess appropriate antidumping duties on entries of the subject merchandise made by firms covered by these reviews.

(64 Fed. Reg. 49,442, 49,443.)

Minolta states that the bearings entered on line 31 were manufactured by Minebea Co. Ltd., and subject to antidumping case number A-588-201-006. However, on the entry summary line 31 was stated as subject to antidumping duty case number A-588-201-000. The Notice of Final Results of Antidumping Duty Administrative Reviews, published in the Federal Register on June 24, 1992, (57 Fed. Reg. 28,360), advised of the Final Results of Reviews on antifriction bearings (other than tapered roller bearings) and parts thereof, from Japan for the period May 1, 1990, through April 30, 1991. This notice also stated

We will direct Customs to collect the resulting percentage deposit rate against the entered Customs value of each of the exporter's entries of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice.

A margin of 106.61 percent for Minebea, and an “all others” rate of 16.71, was determined as a result of this review. Minolta specified antidumping duty case number A-588-201-000 on the CF 7501 and entered the bearings on line 31 at the “all others” rate of 16.71 percent instead of the 106.61 percent rate for bearings manufactured by Minebea.

According to the Port and Minolta, Message number 4209113, dated July 28, 1994, applies to line 31 whether antidumping case A-588-201-000 or A-588-201-006 is applicable to these bearings. Message number 4209113 stated in part:

The Department of Commerce has not received a request for an administrative review of the antidumping duty orders on antifriction bearings from Japan for the period MAY 1, 1992, through APRIL 30, 1993, except for the firms listed below. Therefore, in accordance with section 353.22(E) of the Commerce Regulations, you are to assess antidumping duties on merchandise entered, or withdrawn from warehouse, for consumption during the period MAY 1, 1992, through APRIL 30, 1993, at the cash deposit or bonding rate required at the time of entry, or at the rates specified in paragraph 3, for merchandise manufactured and exported by all firms except those listed below. . . . . This e-mail message constitutes the immediate lifting of suspension of liquidation of entries for the merchandise for the period indicated above.

Paragraph 3 of the instructions does not apply because the time period covered by the paragraph is from May 1, 1992, to June 23 1992, and the protested entry was made on February 23, 1993. Minebea is not listed among those firms excepted. Therefore, this message required the bearings on line 31 to be assessed antidumping duties at the cash deposit or bonding rate required at the time of entry. The Federal Register Notice of June 24, 1992, (57 Fed. Reg. 28,360), set a rate of 106.61 percent for Minebea bearings. Since Minolta entered the bearings on line 31 at the “all others” rate of 16.71 instead of the 106.61 percent rate for bearings manufactured by Minebea, the protested entry was rate advanced with regard to line 31 upon liquidation.

According to Customs Automated Commercial System (ACS), entry number 514-xxxxx20-6 was liquidated on July 19, 2002. The instant Protest was filed on August 8, 2002, and forwarded to this office on July 28, 2003. (We note here that since Minolta, the liquidating port and this office agree that the belts entered on lines 24, 37 and 44 do not affect the analysis below, we do not present the facts relevant to these lines.)

ISSUES:

Was the entry deemed liquidated as entered per § 1504(d) (1993)?

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)). 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)). The subject entry was liquidated on July 19, 2002, and this Protest was filed on August 8, 2002. Also, per § 1514(a)(5), the matter protested, the liquidation of the subject entry is subject to protest.

The Protestant argues that the entry was deemed liquidated as entered per 19 U.S.C. § 1504(d) (1993), i.e., the entry was deemed liquidated with the 16.71 percent antidumping duties asserted on entry on line 31 because the entry deemed liquidated prior to the Customs rate advance and liquidation imposing antidumping duties of 106.61 percent. Minolta argues that “it is clear nothing on the entry caused liquidation to be suspended beyond August 31, 2001, and that under the applicable law, deemed liquidation occurred six months after that date.” Minolta contends that message number 1243202, issued on 8/31/2001, containing liquidation instructions lifted the suspension of liquidation for the bearings on lines 12 and 18, which were the last lines for which liquidation was lifted. Minolta concludes that per 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 entry was deemed liquidated as entered per 19 U.S.C. § 1504(d) (1993) on or about 3/2/2002 and no additional antidumping duties are due.

19 U.S.C. § 1504(d) (1993), provided:

When a suspension required by statute or court order is removed, the Customs Service shall liquidate the entry, unless liquidation is extended under subsection (b), 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 has been extended under subsection (b))” 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) (1993)). We agree with the Protestant’s contention that the 1993 version of § 1504(d) applies to this entry because none of the relevant administrative reviews commenced on or after January 1, 1995. (See Torrington Co. v. United States, 68 F.3d 1347 (Fed. Cir. 1995) holding, “the URAA [Uruguay Round Agreements Act] however, does not apply to administrative reviews initiated prior to January 1, 1995. See URAA § 291(a)(2), (b).” See also American Permac, Inc. v. United States, 191 F.3d 1380 (Fed. Cir. 1999), which overturned a CIT decision because it gave 19 U.S.C. § 1504(d) (1994) “an impermissible retroactive effect because it attache[d] new legal consequences to events completed before the statute was enacted.”)

Liquidation of the protested entry was suspended at entry per 19 U.S.C. § 1673b(d)(2) because of the goods subjected to the antidumping orders. Per 19 C.F.R. § 159.1, liquidation “means the final computation or ascertainment of the duties . . . accruing on an entry.” This definition of liquidation was affirmed in Swisher International, Inc., v. U.S., (27 F. Supp. 2d. 234 (Ct. Int’l Trade 1998), rev’d on other grounds, 205 F.3d 1358 (Fed. Cir. 2000), reh’g en banc denied, LEXIS 12707 (Fed. Cir. May 22, 2000). “Liquidation means the final computation or ascertainment of the duties or drawback accruing on an entry.” The Court found that it “is a liquidation which settles 'the amount of duties owing.'“ Id. at 237. Given this definition and thus the nature of the liquidation of an entry, it is axiomatic there can be only one final liquidation per entry. Therefore, liquidation of the protested entry was suspended as long as at least one line item of goods was subject to an antidumping order and in connection with which liquidation was suspended. The Protestant does not dispute this conclusion.

In Fujitsu, supra, 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 of administrative review as adjusted on remand; the CAFC affirmed the CIT’s decision. However, Commerce delayed issuing the Federal Register notice of this decision and 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. 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 lines 12 and 18 of Minolta’s protested entry, liquidation of the entry was suspended pending an administrative review of the applicable antidumping order, A-588-201 (see 58 Fed. Reg. 34563, June 28, 1993). The final results of this administrative review were published on February 28, 1995, (60 Fed. Reg. 10900). These final results were challenged in the CIT and the U.S. Court of Appeals for the Federal Circuit (“CAFC”).

In NSK Ltd. v. United States, 969 F. Supp. 34 (Ct. Int'l Trade 1997), with respect to Nachi and NSK, the CIT remanded the final results to Commerce for correction of a clerical error:

In accordance with the foregoing opinion, this case is remanded to Commerce to: . . . correct clerical errors for . . . Nachi (with respect to improper accounting for certain U.S. transactions), . . . and NSK. Commerce is sustained as to all other issues.

(Id. at 66). In NSK Ltd. v. United States, 4 F. Supp. 2d 1264 (Ct. Int'l Trade 1998), the CIT affirmed the DOC’s remand results in their entirety. This CIT decision was appealed in part but the remand results concerning NSK were not involved in that appeal (NSK Ltd. v. Koyo Seiko Co., (10 F.3d 1321 (Fed. Cir.)). On September 13, 1999, the DOC published the amended final results of administrative review and noted that there were final court decisions in the relevant cases. This notice contained the:
revised weighted-average margins are as follows: [Manufacturer]
[Fujikoshi] Nachi: 12.46
NSK 16.10
Accordingly, the Department will determine and the U.S. Customs Service will assess appropriate antidumping duties on entries of the subject merchandise made by firms covered by these reviews.

(64 Fed. Reg. 49,442, 49,443.)

With regard to the bearings on lines 12 and 18, per Fujitsu, because the suit challenging the amended 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.” Thus, we agree with Minolta that, under the holding in Fujitsu, supra, the September 13, 1999, Federal Register Notice was notice to Customs that suspension of liquidation had been removed. However, Minolta contends that Message number 9260115, September 17, 1999, is applicable to line 12. This message provided liquidation instructions for AFBS imported by Nachi-America or Nachi Technology Inc. Since Minolta was the importer of record for the entry of bearings at issue, Message number 9260115 does not apply to the protested entry.

Minolta also states that Message number 1243202, contained the liquidation instructions applicable to the AFBS on line 18. Message 1243202 contained liquidation instructions for AFBS which were produced by NSK and imported by or sold to the companies listed during the period between May 1, 1992 and April 30, 1993. Since Minolta is not among those companies listed in these instructions, Message 1243202 is not relevant to this entry. In addition, under NEC Solutions, (NEC Solutions (America), Inc. v. United States, 277 F. Supp. 2d 1340 (Ct. Intl. Trade 2003) aff’d 441 F3d 1340 (Fed. Cir. 2005)), Commerce’s message number 2092209, dated April 2, 2002, would have been notice to Customs that suspension of liquidation had been removed but for the September 13, 1999, Federal Register Notice constituting such notice prior to April 2, 2002.

We agree with Minolta that, under the holding in Fujitsu, supra, the September 13, 1999, Federal Register Notice was notice to Customs that suspension of liquidation had been removed. Accordingly, per Fujitsu Customs had 6 months from September 13, 1999, to liquidate the entry per 19 U.S.C. § 1504(d) (1993), i.e., March 13, 2000. Since Customs did not liquidate the entry until on July 19, 2002, the protested entry is deemed liquidated as entered per § 1504(d). Under Rheem Metalurgica S/A v. United States, 951 F. Supp. 241 (Ct. Int’l Trade 1996)), the protested entry liquidated with antidumping duty due at the rate asserted by the importer and accepted by Customs on the entry. (See also HRL 227793 (November 4, 1998)).

Therefore since Minolta asserted on line 31 an antidumping duty at the “all others” rate of 16.71 instead of the 106.61 percent rate for bearings manufactured by Minebea, the protested entry liquidated by operation of law with antidumping duty of 16.71 percent on line 31. (See also Wolff Shoe Co. v. United States, (936 F. Supp. 1084, (Ct. Int'l Trade 1996), reversed in part, 141 F.3d 1116 (Fed. Cir. 1998) “duty asserted at the time of entry by the importer” means “all of the duties claimed on the entry papers, including countervailing duties.”)

HOLDING:

The entry was liquidated by operation of law as entered per § 1504(d) (1993) 6 months after September 13, 1999.

The Protest should be Granted in full. The entry should be reliquidated and antidumping duty for line 31 should be assessed at the antidumping cash deposit rate asserted by the importer at entry for line 31.

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 CBP 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 Harmon, Director

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