HQ 225323 - Protest 1801-94-100006; frozen orange juice; refund of antidumping duties; entry liquidated when antidumping duty suspension in effect; 19 U.S.C. 1514(c)(2); 19 CFR 159.9; Sea-Land Services, Inc. v. United States; United States v. Utex International, Inc.; HQ 223482; Juice Farms, Inc., v. United States. - United States International Trade Commision Rulings

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HQ 225323

January 3, 1995

LIQ-4-01/LIQ-13/LIQ-11-CO:R:C:E 225323 AJS

CATEGORY: LIQUIDATION

District Director of Customs
U.S. Customs Service
4430 East Adamo Drive, Suite 301
Tampa FL 33605

RE: Protest 1801-94-100006; frozen orange juice; refund of antidumping duties; entry liquidated when antidumping duty suspension in effect; 19 U.S.C. 1514(c)(2); 19 CFR 159.9; Sea-Land Services, Inc. v. United States; United States v. Utex International, Inc.; HQ 223482; Juice Farms, Inc., v. United States.

Dear Sir or Madame:

This is our decision in protest 1801-94-100006, dated February 18, 1994, concerning the refund of antidumping duties.

FACTS:

The subject merchandise consists of frozen concentrated orange juice which was entered on September 25, 1989. The Customs Form (CF) 7501 indicates that the protestant tendered a cash deposit of $36,273.92 in antidumping duties, representing 1.96% of the entered value. The 1.96% antidumping duty cash deposit was required by an antidumping duty order. See 52 Fed. Reg. 16426 (May 5, 1987).

The CF 6445A indicates that the CF 7501 was prepared by the customs broker with an "01" entry type (i.e., code for consumption entry) in box 2 instead of an "03" entry type (i.e., code for consumption entry subject to antidumping or countervailing duty). Consequently, the entry was never entered into suspended status and thus it was liquidated "no change" on February 2, 1990. In addition, the broker prepared the CF 7501 erroneously by including antidumping duties as part of the total duties collected in box 37. The antidumping duties were not separated from the regular duties as required and entered in Box

39. There is also no evidence on the invoice indicating that the merchandise was manufactured by Frutropic S.A. (i.e., the manufacturer subject to antidumping duties). The name, Frutropic S.A., only appears on the packing list which does not identify Frutropic as a manufacturer.

On October 21, 1991, the Department of Commerce (DOC) issued the final results of its administrative review of the antidumping duty order for the period May 1, 1989 through April 30, 1990. See 56 Fed. Reg. 52510 (October 21, 1991). The DOC assigned to Frutropic a weighted-average dumping margin of 0.06% for all shipments during the period. Through Telex 2360111 (December 26, 1991), Counsel for the protestant claims that Customs field personnel were instructed to assess final dumping duties on all of Frutropic's imports during the subject period.

On December 17, 1993, the protestant sent a letter to Customs inquiring about the refund status of the subject entry. On December 28, 1993, Customs responded that liquidation of the entry occurred on February 2, 1990, without any payment or refund of antidumping duties. A search of Customs computer records supports a liquidation date of February 2, 1990.

ISSUE:

If liquidation of an entry is suspended under the Anti- dumping law but Customs erroneously liquidates the entry, may relief be granted under 19 U.S.C. 1514 when relief is applied for more than 90 days after liquidation.

LAW AND ANALYSIS:

The statutory provision for protests is found in 19 U.S.C. 1514. Under this statute, at the time under consideration (section 1514 has since been amended by section 645 of Public Law 103-182 (North American Free Trade Agreement Implementation Act (NAFTA), 107 Stat. 2057, 2206-2207)), the liquidation of an entry is final and conclusive upon all persons unless a protest is filed in accordance with the statute or a civil action contesting the denial of a protest is timely filed in the Court of International Trade. Under paragraph (c)(2) of this provision, a protest under this section must be filed with Customs within 90 days after "the notice of liquidation", or the date of the decision which is protested. A search of Customs computer records indicates the date of liquidation for the subject entry was February 2, 1990. The subject protest was filed on February 18, 1994, which is more than 90 days after the date of liquidation. Therefore, the subject protest was not timely filed and the liquidation at issue is final and conclusive upon all persons.

On December 17, 1993, the protestant sent a letter to Customs inquiring about the refund status of the subject entry. On December 28, 1993, Customs responded that liquidation had occurred on February 2, 1990, without any payment nor refund of antidumping duties. Counsel for the protestant asserts that the letter of December 28 is the protestant's notice of liquidation, and since the subject protest was filed within 90 days of this date that the protest was thus timely filed.

19 CFR 159.9(a) provides that notice of liquidation of formal entries shall be made on a bulletin notice of liquidation, CF 4333. The courts have stated that "[n]otice of liquidation is intended to apprise importers of any action which may affect their interests, and to afford them opportunity to secure administrative and judicial review." Goldhofer Fahrzeugwerk GmbH & Co. v. United States, 706 F. Supp. 892, aff'd 885 F.2d 858, reh'g denied, suggestion for reh'g declined, cert. denied 110 S. Ct. 1946 (1989). Part 159.9(b) states that "[t]he bulletin notice of liquidation shall be posted for the information of importers in a conspicuous place in the customhouse at the port of entry . . ." The courts have also stated that "[i]mporters bear the burden of examining all notices posted in customhouse to determine whether its goods have been liquidated, and to protest timely." Penrod Drilling Co. v. United States, 727 F. Supp. 1463, reh'g dismissed, motion to set aside dismissed, 740 F. Supp. 858 (1989).

Counsel asserts that it has not uncovered any bulletin notice of liquidation. Customs procedure establishes the time for destruction of bulletin notices of liquidation to be three years from the date of posting (i.e., February 2, 1993 in this case). See Records Control Handbook, CIS HB 2100-05 (January 1990). Consequently, the posted bulletin notice for the subject entry no longer exists. However, government officials are entitled to a presumption that their duties are performed in the manner required by law. Star Sales & Distributing Corp. v. United States, 10 CIT 709, 710, 663 F. Supp. 1127, 1129 (1986). A memorandum from your district states it is the practice and policy of the District to post all bulletin notices in accordance with 19 CFR 159.9(b). Therefore, we presume that Customs officials posted a bulletin notice of liquidation for the subject entry on February 2, 1990. A search of Customs computer records supports this presumption by indicating that the subject entry was liquidated on February 2, 1990. The courts have stated that this presumption regarding government officials is not conclusive, and may be rebutted by a declaration or other evidence. International Cargo & Surety Ins. Co. v. United States, 15 CIT 541 (1991). In this case, Counsel simply claims that it has not uncovered any bulletin notice for the subject
entry. We assume that the protestant did not attempt to uncover such a notice until after December 28, 1993 (i.e., when it claims to have received notice of liquidation). As stated previously, any notice would have been destroyed by this date. Therefore, the protestant has not rebutted the presumption that notice was posted. Consequently, we continue to adhere to our previous determination that the subject entry was liquidated on February 2, 1990, and inasmuch as a protest was not filed within 90 days of this date, this liquidation is final and conclusive on all persons pursuant to section 1514.

Counsel alternately asserts that even if a bulletin notice was posted, it would have provided inadequate notice of liquidation. Counsel specifically asserts that such notice was misleading or confusing because it stated the entry was liquidated with "no change". The CF 7501 indicates that the total deposited duty amount was $671,802.85, consisting of $635,528.93 in regular duties and $36,273.92 in antidumping duties. A "no change" liquidation would indicate that Customs liquidated this amount in duty. Customs computer records support the conclusion that the liquidated duty amount was $671,802.85. Such a liquidation should have alerted the protestant to the fact the Customs was liquidating its antidumping duties before a final determination was concluded. From the substance of counsel's final argument, we assume that the protestant was not checking the bulletin notices for the subject entry. If the protestant had examined the posted notices as required, it would have been alerted to the liquidation of its antidumping duties and been able to protest the liquidation. In addition, we note that part of the reason the liquidation notice may have been misleading was due to the broker's errors in preparing the CF 7501. These errors caused Customs failure to suspend the subject entry as well as realize that antidumping duties were deposited. Accordingly, we conclude that the bulletin notice of liquidation would not have been misleading or confusion and thus would have provided adequate notice of liquidation so that the protestant could have protected its interests.

Counsel also claims that the telex 2360111 of December 26, 1991 induced the protestant to believe the suspension of liquidation for its entries continued and thus any premature bulletin notice did not provide legally effective notice of liquidation. See Sea-Land Services, Inc. v. United States, CIT Slip Op. 93-13, printed at Customs Bulletin & Decision, vol. 27, no. 7, p. 38 (February 17, 1993); vacated 829 F.Supp 393 (CIT 1993). In Sea-Land, Customs liquidated the entry in question by bulletin notice on May 25. On May 30, Customs notified Sea-land by letter that its entry "will be liquidated". Sea-Land subsequently filed a protest eighty-nine days after the May 30
letter. Customs denied the protest as untimely because it was not filed within 90 days after the May 25 bulletin notice. The court in Sea-Land stated that based on the May 30 letter, it was very possible for Sea-land to be unsure as to the date of liquidation and, thus, Sea-land acted reasonably in relying on Customs letter of May 30 which indicated that the entry had not been liquidated as of yet. Id. at 40. The court concluded that the statutory ninety-day period was tolled from May 25 until May 30 so that the protest was timely filed. Id. at 41. The court's rationale was based on the fact that Customs' erroneous letter induced Sea-Land to allow the filing deadline to pass, and that the plaintiff should not be deprived of its rights due to the sloppiness of Customs. Id. The court noted that while the Federal Courts have typically extended equitable relief only sparingly, equitable tolling has been allowed where the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass. Id.

Even if Sea-Land was not vacated, this protest is markedly different factually. In this case, no information was provided during the protest period to induce the protestant into allowing the filing deadline to pass. The telex of December 26, 1991, was issued more than twenty-two months after the date of liquidation and not with the 90-day protest period as in Sea-Land. In addition, no course of action was open to the protestant on December 26 for it to be induced from pursuing because the liquidation of the subject entry was final in May of 1990. Therefore, we do not find the decision rendered in the vacated Sea-Land case instructive for resolving the protest in question. Counsel lastly asserts that since Customs was required by law and DOC instructions to suspend liquidation of the subject entry, the protestant had no duty to seek out liquidation notices during the periods when liquidation was suspended by law. Based on the following cases, we disagree with this assertion.

The Court of Appeals for the Federal Circuit addressed a similar issue in United States v. Utex International, Inc. (Utex), 6 Fed. Cir. (T) 166, 857 F. 2d 1408 (1988). That case involved what the court described as the "premature" liquidation of the entry of shrimp (the liquidation was described as "premature" because a Notice of Detention and Hearing for the merchandise under consideration (frozen shrimp) had been issued and under 19 CFR 159.55, liquidation was required to be suspended). The court rejected the "void" liquidation doctrine. Id. at 170. The court noted that in such a situation, the courts have "held that the erroneous liquidation could be corrected only by following the statutory procedures, and that failure to do so within the period set by statute leaves the liquidation final." Id. The court concluded (with regard to this issue):

We do not hold that the liquidation was correct. But absent timely reliquidation or protest it was final as to all aspects of the entry. The importer, the surety, and the government are bound by and have the right to rely on the finality of liquidation. Id. at 172.

Customs also addressed a similar issue in Headquarters Ruling Letter (HQ) 223482 (December 20, 1994). The protestant in that case argued the entries under consideration were never actually liquidated and that the "putative" liquidations were void because of the suspension of liquidation under the Antidumping law. Customs ruled that even if a liquidation is "premature" or "erroneous", unless it is timely protested, or other appropriate administrative remedy is timely sought, the liquidation is final as to all aspects of entry. Customs further added that as the court stated in Omni (i.e., Omni U.S.A., Inc. v. United States, 6 Fed. Cir. (T) 99, 840 F.2d 912 (1988)) "the refusal by customs to correct [the errors in liquidation] upon untimely notice was correct, and the only course open to them." (emphasis added).

In regard to the foregoing, see also, Juice Farms, Inc., v. United States, CIT Slip Op. 94-172, printed at Customs Bulletin & Decision, vol. 28, no. 48, p. 20 (November 30, 1994), involving a case in which Customs prematurely and erroneously liquidated 20 entries of Brazilian orange juice the liquidation of which was suspended under an antidumping order. According to the court:

Plaintiff, however, did not check the bulletin notices and apparently did not know that the liquidation had taken place. Indeed, because Commerce had ordered the suspension of liquidation of entries of Brazilian orange juice, plaintiff believed that it did not need to check for bulletin notices. Id. at 21-22.

The court held that it did not have jurisdiction to review the denial of plaintiff's protest under 28 U.S.C. 1581(a) because "it is undisputed that plaintiff failed to file a protest within 90 days of the bulletin notices of liquidation" Id. at 23. The court also rejected the plaintiff's argument that the time in which to protest was tolled on the basis that "[a]n importer cannot treat an illegal liquidation as void; rather, the importer must remain vigilant and protest the legality of such a liquidation within 90 days of notice [and] [i]f the importer fails to protest in a timely manner, then liquidation becomes final" Id. at 23. Finally, the court rejected the plaintiff's arguments that jurisdiction existed pursuant to 28 U.S.C. 1581(i) (enabling the court to hear a case when traditional means of obtaining judicial review are manifestly inadequate) because,

"plaintiff could have sought relief by protesting within 90 days of the overt and inadvertent liquidations of its entries of orange juice[;] [t]he Court does not acquire jurisdiction simply because plaintiff failed to utilize the adequate remedy statutorily available to it." Id. at 24.

HOLDING:

The protest is denied. When liquidation of an entry is suspended under the Antidumping law but Customs erroneously liquidates the entry, relief may not be granted under 19 U.S.C. 1514 when such relief is not applied for within 90 days after liquidation.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office, 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 take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act, and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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