HQ 224427 - Protest 2704-92-103051; television sets from Japan; 19 U.S.C. 1504; 19 U.S.C. 1675(a); HQ 224778; HQ 225107; Canadian Fur Trappers Corp. v. U.S.; 19 U.S.C. 1504(d); Section 632, NAFTA Implementation Act. - United States International Trade Commision Rulings

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 > 1997 HQ Rulings > HQ 114022 - HQ 226416 > HQ 224427

Previous Ruling Next Ruling
HQ 224427

October 2, 1996

LIQ-4-01-RR:IT:EC 224427 AJS

CATEGORY: ENTRY

Port Director
U.S. Customs Service
300 S. Ferry Street
Terminal Island
San Pedro, California 90731

RE: Protest 2704-92-103051; television sets from Japan; 19 U.S.C. 1504; 19 U.S.C. 1675(a); HQ 224778; HQ 225107; Canadian Fur Trappers Corp. v. U.S.; 19 U.S.C. 1504(d); Section 632, NAFTA Implementation Act.

Dear Sir:

This is our decision in protest 2704-92-103051, dated July 28, 1992, concerning the liquidation of an entry of television sets from Japan.

FACTS:

The subject merchandise was entered on October 18, 1987. An antidumping (AD) finding was made on March 10, 1971, which involved the subject merchandise. Liquidation of the entry was suspended pending the final results of an antidumping duty administrative review for the subject merchandise. On April 10, 1991, the International Trade Administration (ITA) issued the final results of its administrative review of the AD order on television sets from Japan covering the manufacturer/exporter Sharp and the period March 1, 1987 through February 29, 1988. 56 Fed. Reg. 16069 (April 19, 1991). The ITA determined that the dumping margin for Sharp for this period was 38.26 percent. Id. at 16071. The ITA stated that it would instruct Customs to assess antidumping duties on all appropriate entries and issue appraisement instructions directly to Customs. Id. The protestant did not participate in that review. No cash deposit was collected at the time of the entry because the deposit rate was zero.

Message No. 1207115, dated July 26, 1991, was issued to Customs field offices concerning liquidation instructions for television sets from Japan. This message was prepared by the ITA and electronically transmitted to Customs Headquarters for further transmittal to

Customs field offices. Customs procedure requires these messages to be transmitted to field offices within 24 hours of receipt from the ITA. Paragraph 5 of these instructions stated that "[f]or Japaneses TVS entered . . . for consumption during the period 04/01/85 through 02/28/91, liquidate all entries for all firms . . . except for TVS exported by the following firms and entered during the periods listed:" Sharp was listed as one of these firms, and entries from 04/01/85 - 02/28/90 were listed as the entry period. Customs officials from your port determined that these instructions required suspension of liquidation for the subject entry to be continued pending further instructions because Sharp was one of the firms listed as an exception to the liquidation instructions. The protestant argues that inasmuch as the "exporter" in this case was not Sharp, that the subject entry should have been liquidated based on the language "liquidate all entries for all firms".

Message No. 2071113, dated March 11, 1992, was issued to Customs field offices concerning television sets from Sharp. Paragraph 2 of these instructions stated that "[f]or all shipments of Japanese television receiving sets manufactured by Sharp and entered . . . for consumption during the listed periods assess a dumping liability equal to the difference between U.S. price and foreign market value." The listed periods were March 1, 1987 through February 29, 1988. Customs officials from the port determined that these instructions required liquidation of the subject entry because Sharp was a manufacturer of the merchandise at issue. The subject entry was liquidated pursuant to this message on May 1, 1992.

The protestant contends that it is not subject to the administrative review because it is not specifically listed among the firms subject to the final results of that review. You state that while the protestant is not listed, the sets are manufactured by a firm listed in the review (i.e., Sharp) and the AD duty was assessed as a result.

The protestant also argues that if AD duty does apply, no interest should be assessed because no cash deposit were demanded or tendered on these entries.

ISSUE:

Whether antidumping duties may be applied to the subject entry and whether the entry was deemed liquidated pursuant to 19 U.S.C. 1504(a) on its fourth-year anniversary or properly liquidated by the actions of Customs.

LAW AND ANALYSIS:

Initially, we note that this protest was timely filed pursuant to 19 U.S.C. 1514(c)(2)(A). The entry was liquidated on May 1, 1992, and this protest was filed on July 28, 1992. We also note that the liquidation of an entry is protestable pursuant to 19 U.S.C. 1514(a)(5).

On the issue of the applicability of AD duty to the protestant, the protestant claims that it is not subject to the published results because neither it nor the exporter requested a review. The protestant cites to 19 CFR 353.22(e), which provides that if a timely review is not requested, then the Department of Commerce (DOC) should instruct Customs to assess AD duties equal to the estimated duties or cash deposit rate required at the time of entry. The protestant claims that no AD duties were deposited in this case.

The appropriate proceeding in which to determine whether AD duties are applicable is the administrative review under section 751(a) of the Tariff Act of 1930 (19 U.S.C. 1675(a)). Section 611(a)(2)(A) of the Tariff and Trade Act of 1984 amended section 751 to provided for reviews on request only rather than automatically. 50 Fed. Reg. 32556 (1985); see also Customs ruling HQ 224710 (August 16, 1993). The fact that the protestant chose not to avail itself of this process does not give it the right to circumvent the process later through a protest. Thus, whether or not the protestant participated in the review has no bearing on its applicability to the present case.

Furthermore, it has been determined that the scope of an investigation and subsequent determination pursuant to the Trade Agreements Act of 1979, as amended, lies largely in the ITA's discretion. See, e.g., Mitsubishi Electric Corp. v. United States, 898 F.2d 1577, 1583 (Fed. Cir. 1990); Kern-Liebers USA, Inc. v. United States, CIT slip op. 95-50 (March 23, 1995). This discretion is used to "define and clarify" the scope of an antidumping investigation "in a manner which reflects the intent of the petition." Kern-Liebers USA, supra; Minebea Co. v. United States, 16 CIT 20, 22, 782 F. Supp. 117, 120 (1992). In addition, section 353.24(c) of the Customs Regulations, 19 CFR 353.24(c), states the following:

The Secretary [of Commerce] will instruct the Customs Service to calculate interest for each entry from the date that a cash deposit is required to be deposited for the entry through the date liquidation of the entry.

Therefore, this further review of the protest is not the appropriate procedure in which to determine the proper scope of an AD duty finding or interest to be applied consequently.

With respect to the liquidation issue, we note that liquidation of an entry constitutes the final computation by Customs of all duties (including any antidumping or countervailing) accruing on that entry. See generally Ambassador Division of Florsheim Shoes v. United States, 748 F.2d 1560, 1562 (Fed. Cir. 1984). Generally, an entry is deemed liquidated as entered if Customs has not liquidated the entry within one year from the date of entry or withdrawal from warehouse. 19 U.S.C. 1504(a). Liquidation of an entry may be suspended beyond this one year period pursuant to statute or court order. The subject entry was suspended pursuant to 19 U.S.C. 1675 pending the results of an antidumping duty investigation.

On April 19, 1991, the ITA published the final results of the administrative review for the subject entries. These results state that the ITA will issue appraisement instructions to Customs. Consequently, until Customs received these instructions it was unable to liquidate the subject entries. In HQ 224778 (December 23, 1993), Customs ruled that a suspension of liquidation is not lifted until instructions are received from the ITA. See also HQ 225107 (September 20, 1994). The protestant claims that the instructions of July 26 covered the subject entry because the exporter was not listed as one of the firms for which suspension was continued. However, Customs determined that these instructions required the suspension of the entry to be continued because the manufacturer "Sharp" was listed as one of the firms for which suspension was to continue. Sharp was the manufacturer of the subject merchandise. Therefore, these instructions required Customs to continue the suspension of liquidation for the subject entry. This conclusion is supported by the subsequent instructions of March 11. Those instructions clearly indicate that suspension of liquidation for entries of the subject merchandise which were manufactured by Sharp and entered from March 1, 1987 through February 29, 1988, should be lifted at that time. Thus, we conclude that instructions requiring Customs to liquidate the subject entry were not received until March 11, 1992. Consequently, the suspension of liquidation for the subject entry was lifted on this date and the entry was subsequently liquidated on May 1, 1992.

The Court of International Trade (CIT) addressed the application of 19 U.S.C. 1504(d) in Canadian Fur Trappers Corp. v. United States, 12 CIT 612 (1988), aff'd 7 Fed. Cir. (T) 136, 139 (1989). In that case, the suspension of the entries involved was lifted after four years from the date of entry. The CIT stated that when a suspension is lifted after four years have passed, Customs has a discretionary 90 days to liquidate the entries. Fur Trappers at 618. This decision was based on the legislative history for section 1504(d) which states that "[t]his last provision is discretionary, rather than mandatory, and recognizes that there will be instances when it may be impossible to complete liquidation within 90 days because of the sheer number of entries to be liquidated after a long continued suspension." Id. at 616. The subject entries were also suspended more than four years from the date of entry (i.e., October 18, 1987), and liquidated less then 2 months from the date the suspension was lifted. Thus, the subject entry was timely liquidated under the rationale of the Fur Trappers decision.

Section 1504(d) was amended by Section 632, title VI-Customs Modernization, Public Law 103-182, the North American Free Trade Agreement (NAFTA) Implementation Act (107 Stat. 2057), enacted December 8, 1993. Section 692 states that title VI is effective on the date of enactment of the Act. The subject entry was liquidated before the effective date of the NAFTA Implementation Act and thus it is not governed by the Act. Although, even if the entry was governed by the Act it would still have been timely liquidated. Section 632(d) states that "[w]hen 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 . . ." Furthermore, this section provides "[a]ny 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." As stated previously, the subject entry was liquidated less than 2 months after receiving notice from the DOC (i.e., ITA) and thus it would have been timely liquidated under Section 632 of the Act.

HOLDING:

The protest is denied. The subject entry was not deemed liquidated by operation of law pursuant to 19 U.S.C. 1504(d) but by the actions of Customs on May 1, 1992. The protest and further review of such is not the appropriate proceeding for determining the proper scope of an antidumping finding or interest to be applied consequently.

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, with the Customs Form 19, by your office 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,

Director,

Previous Ruling Next Ruling