LIQ-9-01/-4-01-CO:R:C:E 223482 PH
U. S. Customs Service
Protest and Control Section
6 World Trade Center, Room 762
New York, New York 10048-0945
RE: Protest 1001-91-002901; Liquidation of Entries Subject to
Suspension of Liquidation; Antidumping Duties; 19 U.S.C.
1520(a)(4); 19 U.S.C. 1520(c)(1); 19 U.S.C. 1514
Dear Sir:
The above-referenced protest was forwarded to this office
for further review. We have considered the points raised by your
office and the protestant. The delay in processing this protest
has been at the request of the protestant. Our decision follows.
FACTS:
According to the file, on July 10, 17, and 25, August 1, 3
(two entries), 9, and 29, and September 4, of 1984, the
protestant entered certain color television receivers from Korea.
The entries were subject to a deposit of antidumping duties in
the amount of 15.95 percent (49 F.R. 18336, April 30, 1984).
Liquidation of entries of this merchandise was directed to be
suspended (48 Federal Register (F.R.) 48487, October 19, 1983; 49
F.R. 7620, March 1, 1984; and 49 F.R. 18336, April 30, 1984).
Each of the entries was stamped and marked to indicate that it
was suspended. After final administrative review, antidumping
duties in the amount of 2.06 percent were ordered for the
merchandise under consideration (51 F.R. 41365, November 14,
1986).
Notwithstanding the directions to suspend the liquidation of
the entries, the entries were liquidated as entered (i.e., with
antidumping duties in the amount of 15.95 percent), each shortly
before the 1-year anniversary date of the entry. Bulletin
notices of liquidation were posted for each of the entries.
By letter of November 8, 1990, the protestant, through its
representative, requested relief under 19 U.S.C. 1520(a)(4) or
1520(c)(1), contending that the entries under consideration "did
not liquidate" or that the clerical error which caused the
liquidation was discovered by Customs within one year and was
therefore correctable under law. On January 8, 1991, this
request was denied because of untimeliness.
On April 3, 1991, the protestant filed the subject protest.
The protestant applied for further review and the application for
further review was approved. The bases of the protest were the
contentions made in the November 8, 1990, request for relief by
the protestant. These contentions included the claim that the
liquidations "did not liquidate" because all of the necessary
component parts of liquidation (including particularly the
"mental ... decision") did not occur and no Customs official
intended and/or affirmatively caused the liquidations, nor were
the entries stamped "liquidated." It was contended that the
printing of the bulletin notices of liquidation was a "clerical
error" because there could have been no intention to print entry
numbers and liquidation dates for these entries. Thus, the
protestant claimed that no liquidations took place so that relief
could be granted under 19 U.S.C. 1520(a)(4).
Alternatively, the protestant claimed that relief could be
granted under 19 U.S.C. 1520(c)(1) because Customs should have
been made aware by the Federal Register notice that any
liquidation of entries subject to suspension (including those
under consideration) should be corrected by reliquidation. The
protestant also claimed that even if liquidations were considered
to have occurred and a timely protest or application for relief
under 19 U.S.C. 1520(c)(1) had been filed, it could not have
obtained such relief.
In its protest, and in a letter of September 12, 1991,
supplementing the protest and explaining why the protestant
believed further review should be granted, the protestant again
argued that the printed bulletin notices of liquidation merely
reflect the work product of the import specialist and are not,
themselves, liquidations. The protestant contended that "the
import specialist did all that he could not to liquidate the
entries" and therefore that "the notices reflect[ed] an event
that never occurred."
Further review, which was requested (see above), was
granted.
ISSUE:
If liquidation of entries is suspended under the Antidumping
law but Customs "erroneously" or "prematurely" liquidates the
entries, may relief be granted under 19 U.S.C. 1520(a)(4) or
1520(c)(1) when relief is not applied for until more than five
years after the "erroneous" or "premature" liquidations?
LAW AND ANALYSIS:
Initially, we note that the protest (of the refusal to
reliquidate the entries under 19 U.S.C. 1520(c)) was timely filed
(i.e., within 90 days of the date of such refusal; see 19 U.S.C.
1514(c)(2)(B)). The decision protested is protestable under 19
U.S.C. 1514 (see 19 U.S.C. 1514(a)(7)).
Under 19 U.S.C. 1500, Customs shall, among other things,
liquidate the entry of imported merchandise and give notice of
such liquidation to "the importer, his consignee, or agent",
under rules and regulations prescribed by the Secretary of the
Treasury. The Customs Regulations pertaining to liquidation of
entries are found in 19 CFR Part 159. Under the Customs
Regulations, bulletin notices of liquidation are the official
notice of the liquidation of entries (Treasury Decision (T.D.)
90-92; see also Tropicana Products, Inc., v. United States, 8
Fed. Cit. (T) 145, 909 F. 2d 504 (1990)).
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 (NAFTA Implementation Act, 107 Stat. 2057, 2206-2207)),
the liquidation or reliquidation 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.
Under 19 U.S.C. 1520(a)(4), Customs may refund duties or
other receipts if, prior to the liquidation of an entry, it is
ascertained that excess duties, fees, charges, or exactions have
been deposited or paid by reason of clerical error. Under 19
U.S.C. 1520(c)(1), Customs may reliquidate an entry to correct a
clerical error, mistake of fact, or other inadvertence not
amounting to an error in the construction of a law if the
clerical error, mistake of fact, or other inadvertence is adverse
to the importer, manifest from the record or established by
documentary evidence, and brought to the attention of the
appropriate Customs officer within one year after the date of
liquidation of the entry.
Two relatively recent decisions of the Court of Appeals for
the Federal Circuit are particularly apposite to this case. In
Omni U.S.A., Inc., v. United States, 6 Fed. Cir. (T) 99, 840 F.
2d 912 (1988), the Court considered the application for relief
under 19 U.S.C. 1520(c)(1) against the liquidation,
notwithstanding an order to suspend liquidation, of entries for
which countervailing duties had been deposited. Although,
according to the Court, "[s]ection 1520(c)(1) appears to fit the
present case like a glove" (6 Fed. Cir. (T) at 101), because the
request for reliquidation under that provision was not made until
more than a year after liquidation, "the original liquidations
were considered final and binding on all persons under section
1514." (6 Fed. Cir. (T) at 100) Before agreeing with the Court
of International Trade that this was not a case for equity (i.e.,
"[a legal remedy] is not made inadequate simply because appellant
failed to invoke it within the time frame [prescribed]" (6 Fed.
Cir. (T) at 104)), the Court stated:
Since nobody brought the errors to the
attention of the appropriate customs officers
within a year of the date of liquidation,
authority to correct them lapsed according to
the term of section 1520(c)(1), the refusal by
customs to correct them upon untimely notice
was correct, and was the only course open to
them. [6 Fed. Cir. (T) at 101]
The second decision of the Court of Appeals for the Federal
Circuit is United States v. Utex International, Inc., 6 Fed. Cir.
(T) 166, 857 F. 2d 1408 (1988). This 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 the
Customs Regulations (19 CFR 159.55), liquidation was required to
be suspended). The Court, as had the same Court in the Omni
decision (above, 6 Fed. Cir. (T) at 102-103), rejected the "void"
liquidation doctrine (6 Fed. Cir. (T) at 170). The Court noted
that in such a situation, "[b]oth the Omni and Deringer [i.e.,
United States v. Deringer, Inc., 66 CCPA 50, 593 F. 2d 1015
(1979)] courts 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." (6 Fed. Cir. (T) at 170) 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. [6 Fed.
Cir. (T) at 172]
In the case under consideration, the principal arguments of
the protestant are, basically, that the entries under
consideration were never actually liquidated and that what it
calls the "putative" 1985 liquidations were void because of the
suspension of liquidation under the Antidumping Law. Bulletin
notices of the 1985 liquidations were properly posted. Bulletin
notices of liquidation are the official notification of
liquidation of entries. Therefore, under Tropicana and the other
authorities cited above, the entries were actually liquidated by
the 1985 liquidations. As described above, the "void"
liquidation theory has been rejected by the Courts. 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. As
the Court stated in Omni (quoted above), "the refusal by customs
to correct [the errors in liquidation] upon untimely notice was
correct, and was 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 &
Decisions, 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 liquidations 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 p. 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 liquidations" (id. at p. 23).
The Court also rejected the plaintiff's arguments 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 liquida-
tion within 90 days of notice [and] [i]f the importer fails to
protest in a timely manner, then liquidation becomes final" (id.
at p. 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 p. 24).
The protestant also contends that relief should be granted
under 19 U.S.C. 1520(c)(1), if the entries are considered to have
been liquidated in 1985, because, in effect, the Federal Register
notice that liquidation of entries of the covered merchandise was
suspended "brought to the attention of the appropriate customs
officer within one year after [liquidation]" the "erroneous" or
"premature" liquidations in this case. In regard to this
argument, we note the statement of the Court of International
Trade in PPG Industries, Inc. v. United States, 4 CIT 143 (1982),
quoting in part from the lower court in Hambro Automotive Corp.
v. United States, 81 Cust. Ct. 29, 31, 458 F. Sup. 1220, C.D.
4761 (1978) (aff'd, 66 CCPA 113, 603 F. 2d 850 (1979)):
... it is incumbent on the plaintiff to show by
sufficient evidence the nature of the mistake
of fact. The burden and duty is upon the
plaintiff to inform the appropriate Customs
official of the alleged mistake with
"sufficient particularity to allow remedial
action." [4 CIT at 147-148; see also, ITT
Corp. v. United States, 24 F. 3d 1384, 1387
(Fed. Cir. 1994), "... the importer must assert
the existence of an inadvertence to Customs
'within the proper time and with sufficient
particularity to allow remedial action'"; and
United States v. Lineiro, 37 CCPA 5, 10, C.A.D.
410 (1949), in which the Court stated
"[d]etermination of issues in customs
litigation may not be based on supposition."]
The Court in PPG went on to state that:
Decisions of this court uniformly have held
that to invoke [19 U.S.C. 1520(c)(1)] the
information relating to a mistake of fact must
in effect constitute a request for
reliquidation and be made within the time
requirements specified in the statute. [4 CIT
at 149; see also, the discussion of court
interpretations of 19 U.S.C. 1520(c)(1) in Ruth
Sturm's Customs Law & Administration, 3rd
Edition, section 9.4 (issued December 1990).]
In this case, the protestant clearly has not satisfied its
"burden and duty" to "inform the appropriate Customs official of
the alleged mistake with 'sufficient particularity to allow
remedial action.'" To paraphrase the Court in PPG (4 CIT at
148), "[c]learly, the Congress did not intend to impose upon
Customs officials across the Nation, who must handle thousands of
entries each week, an obligation to ferret out information [from
notices in the Federal Register relating generally to suspensions
of liquidations of entries not specifically identified in the
applicable Federal Register notices], particularly where the
information regarding such [entries and the merchandise entered
under them] is singularly within the knowledge of the importer."
Under the decision in the Omni decision and as stated in
that case, "[denial of relief in this case] is the only course
open to [us]." (6 Fed. Cir. (T) at 101.) Relief may not be
granted under 19 U.S.C. 1520(a)(4) because relief may be granted
under that provision only prior to liquidation and liquidation
had already occurred when such relief was sought in 1990. Relief
may not be granted under 19 U.S.C. 1520(c)(1) because, even if
the protestant otherwise qualified for such relief, the alleged
clerical error, mistake of fact, or other inadvertence was not
timely brought to the attention of Customs.
In regard to the implicit equity claim in this case, we note
that equitable principles do not operate against the Government
in cases involving the collection or refund of duties on imports
(Air-Sea Brokers, Inc. v. United States, 66 CCPA 64, 67-68,
C.A.D. 1222, 596 F. 2d 1008 (1979); see also Mitsubishi
Electronics America, Inc. v. United States, CIT Slip Op. 94-155,
printed in the October 26, 1994, Customs Bulletin and Decisions,
Vol. 28, No. 43, p. 69). Since this is a case involving the
collection or refund of duties on imports, equity is not
available. Even if equity were available in this case, as the
Court stated in Omni, supra, "[a legal remedy] is not made
inadequate simply because appellant failed to invoke it within
the time frame [prescribed]" (6 Fed. Cir. (T) at 104); see also,
Juice Farms, supra, in which the Court rejected the plaintiff's
arguments that traditional means of obtaining judicial review are
manifestly inadequate on the basis that the plaintiff could have
sought relief by timely protesting, i.e., "[t]he Court does not
acquire jurisdiction simply because plaintiff failed to utilize
the adequate remedy statutorily available to it" (Customs
Bulletin & Decisions, vol. 28, no. 48, at p. 24).
Furthermore, in this regard, we note that protestant's
assertion that even a timely protest or application for relief
under 19 U.S.C. 1520(c)(1) would have been ineffective is
incorrect. In cases where there was a "premature" or "erroneous"
liquidation (because of the existence of directions to suspend
liquidation) and no final order on the amount of antidumping
duties has been issued, Customs has offered to withhold action on
protests of such liquidations until a final antidumping order is
issued (see, e.g., rulings 221591, February 13, 1990, and 222364,
August 21, 1990). Thus, a timely protest or application for
relief under 19 U.S.C. 1520(c)(1) could have been effective.
Subsequent to the protest and the September 12, 1991,
supplement to the protest, the protestant made additional
arguments. The protestant cited American Permac, Inc. v. United
States, 16 CIT 672, 800 F. Supp. 952 (1992), for the proposition
that "putative antidumping liquidations which occur during the
period of suspension are not to be accorded recognition." The
protestant cited Nunn Bush Shoe Co. v. United States, 16 CIT 45,
784 F. Supp. 892 (1992), for the proposition that "putative
antidumping liquidations, which were bulletin noticed, should be
disregarded." The protestant cited Pagoda Trading Co. v. United
States, 9 CIT 407, 617 F. Supp. 96 (1985), aff'd 5 Fed. Cir. (T)
10, 804 F. 2d 665 (1986), arguing that because in that case
computer generated suspension notices which were issued after the
underlying suspension of liquidation was revoked were not
recognized as suspensions since there was no evidence that any
official with power to do so knowingly suspended liquidation, the
liquidations which occurred in this case while liquidation was
suspended should also not be recognized.
The American Permac case, of course, considered the
applicability of the "deemed liquidation" provision in 19 U.S.C.
1504 when suspension of liquidation was not lifted until after
the 4-year period for liquidation provided in section 1504. The
Court held that in such a case, liquidation continued to be
suspended by law (i.e., no "deemed liquidation" occurred on the
fourth year of entry). We fail to see how this case supports the
protestant's arguments.
The Nunn Bush case considered the applicability of 19 U.S.C.
1504 when suspension of liquidation under a countervailing duty
order was lifted within the 4-year period provided for in section
1504 but Customs did not liquidate the entries until more than
four years after entry. In such a case the Court held that the
entries were deemed liquidated as entered, under the provisions
of section 1504 (see the explanation of this case in the American
Permac case, 16 CIT at 680). We note also that what the
protestant calls "putative antidumping liquidations" in this case
were timely protested under 19 U.S.C. 1514. Again, we fail to
see how this case supports the protestant's arguments.
The Pagoda Trading Co. case also concerned 19 U.S.C. 1504,
i.e., the effectiveness of notices of suspension of liquidation
which were issued after the suspension of liquidation was lifted.
The Court held that because the time for liquidation was not
properly extended, liquidation was deemed to have occurred by
operation of law prior to Customs liquidation of the entries.
The liquidations which were challenged were timely protested
under 19 U.S.C. 1514, in contrast to the liquidations in the
protested case. Again, we fail to see how this case supports the
protestant's arguments.
In regard to the above arguments, as is made very clear in
our discussion of the Omni, Utex, and Juice Farms cases, the
problem for the protestant is that liquidation did occur in the
protested case and proper notice of liquidation was given. The
liquidation in the protested entries may have been premature and
erroneous, but under the Omni, Utex, and Juice Farms cases, the
protestant still had the responsibility to timely challenge the
liquidations. Since the protestant failed to do so, "the refusal
by [C]ustoms to correct them [i.e., the liquidations] upon
untimely notice was correct, and was the only course open to them
[i.e., Customs]" (Omni, 6 Fed. Cir. (T) at 101; note that the
same reasoning is followed in the very recent Juice Farms case).
HOLDING:
If liquidation of entries is suspended under the Antidumping
law but Customs "erroneously" or "prematurely" liquidates the
entries, relief may not be granted under 19 U.S.C. 1520(a)(4) or
1520(c)(1) when relief is not applied for until more than five
years after the "erroneous" or "premature" liquidations.
The protest is DENIED. In accordance with Section A(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 ABCS and the public via the Diskette
Subscription Service, Freedom of Information Act, and other
public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division