LIQ-4-01-CO:R:C:E 222364 PH
District Director
U.S. Customs Service
909 First Avenue, Room 2039
Seattle, Washington 98174
RE: Internal Advice request on protests of prematurely
reliquidated entries; Antidumping duties; Protests 30017-
000496, 30017-000497, and 30017-000498, April 14, 1987
Dear Sir:
With an April 24, 1990, Transmittal and Routing Slip, the
Protest Section in your District forwarded the subject protest
files. Because no action is indicated to have been taken on the
protests/applications for further review, we are treating your
transmittal as a request for internal advice (see 19 CFR 177.11).
We are returning the protest files for action as indicated in
this letter. Our advice follows.
FACTS:
Protest/application for further review 30017-000496 concerns
1,260 five-inch Color TV/Monitors manufactured by Cosmos Electric
Co. in Seoul, Korea, which, according to the file, were imported
into the United States at Seattle, Washington, on September 17,
1986. The merchandise was exported from Korea on September 4,
1986. The merchandise was entered on September 18, 1986, and the
entry summary date for the merchandise was September 30, 1986.
Protest/application for further review 30017-000497 also
concerns 1,260 five-inch Color TV/Monitors manufactured by Cosmos
Electric Co. in Seoul, Korea. According to the file, this
merchandise was imported into the United States at Seattle,
Washington, on September 9, 1986. The merchandise was exported
from Korea on August 28, 1986. The merchandise was entered on
September 4, 1986, and the entry summary date for the
merchandise was September 16, 1986.
Protest/application for further review 30017-000498 also
concerns 1,260 five-inch Color TV/Monitors manufactured by Cosmos
Electric Co. in Seoul, Korea. According to the file, this
merchandise was imported into the United States at Seattle,
Washington, on September 19, 1986. The merchandise was exported
from Korea on September 8, 1986. The merchandise was entered on
September 19, 1986, and the entry summary date for the
merchandise was October 1, 1986.
The merchandise was initially misclassified as five-inch
Color Monitors (a classification not subject to antidumping
duties) and liquidated on October 31, 1986, without antidumping
duties. Customs notified the importer of the misclassification
and demanded the deposit of 14.88 percent antidumping duties on
November 6, 1986. On the basis of a November 14, 1986, Federal
Register (51 FR 41365) Notice, the importer asked Customs to be
allowed to deposit antidumping duties of 3.49 percent instead of
14.88 percent. The importer states that, based on the advice of
a Customs officer in your District, the importer paid 3.49 per-
cent antidumping duties on December 30, 1986.
On January 16, 1987, the entries were reliquidated and bills
were issued for additional antidumping duties. The importer
states that these bills were received and paid on March 24, 1987,
by check.
The importer filed protests/applications for further review
in your District on April 14, 1987, supported by letters dated
May 19, 23, and 27, 1988, from its counsel. The protestant
claims that the antidumping duties applicable at the time of
importation of the merchandise were 3.49 percent instead of
14.88 percent.
ISSUE:
May Customs "unliquidate" the premature reliquidation of an
entry when antidumping duties have been exacted for the entry
even though no final order on the amount of the antidumping
duties has been issued?
LAW AND ANALYSIS:
On April 30, 1984, the International Trade Administration,
Department of Commerce (ITA), published in the Federal Register
(49 FR 18336) a Notice of Antidumping Duty Order Concerning Color
Television Receivers from Korea. The Notice provided that effec-
tive on the date of publication, Customs must require a 13.90
percent cash deposit equal to the estimated weighted-average
antidumping duty margins for companies other than those listed in
the Notice (Cosmos was not listed). On the basis of this Notice,
Instructions 84/135, dated May 10, 1984, were issued to Customs
officers. These Instructions stated that, with certain excep-
tions not applicable in this case, field officers should continue
to suspend liquidation on all unliquidated entries of the subject
merchandise entered, or withdrawn from warehouse, for consumption
on or after October 19, 1983 (this suspension of liquidation
continues to be in effect with regard to color television receiv-
ers from Korea manufactured or exported by Cosmos and entered at
the time of the entries under consideration; see telex to Customs
field officers dated June 10, 1987). In addition, Customs
officers were instructed to require importers, with certain
exceptions not applicable in this case, to post a cash deposit of
13.90 percent of the entered value for manufacturers/exporters
other than those listed (Cosmos was not listed).
On December 28, 1984, the ITA published in the Federal
Register (49 FR 50420) a Notice of Final Results of Administra-
tive Review of Antidumping Duty Order which stated that "[f]or
any future shipments from a new exporter not covered in this
review, whose first shipments occurred after April 30, 1984, and
who is unrelated to any reviewed firm, a cash deposit of 14.88
percent shall be required." According to the Notice, "[t]hese
deposit requirements are effective for all shipments entered, or
withdrawn from warehouse, for consumption on or after the date of
publication of this notice [i.e., December 28, 1984, which is
also the effective date of the Notice]."
On July 28, 1986, the ITA published in the Federal Register
(51 FR 41365) a Notice of Preliminary Results of Antidumping Duty
Administrative Review stating that "[f]or any future shipments of
this merchandise from a new export[er] not covered in this or
prior administrative reviews, whose first shipments occurred
after March 31, 1985, and who is unrelated to any reviewed firm,
a cash deposit of 14.25 percent shall be required." According to
the Notice, "[t]hese deposit requirements are effective for all
shipments of Korean color television color receivers entered, or
withdrawn from warehouse, for consumption on or after the date of
publication of the final results of this administrative review."
On November 14, 1986, the ITA published in the Federal
Register (51 FR 41365) a Notice of Final Results of Antidumping
Duty Administrative Review stating that "[f]or any future
shipments of this merchandise from a new exporter not covered in
this or prior administrative reviews, whose first shipments oc-
curred after March 31, 1985, and who is unrelated to any reviewed
firm, a cash deposit of 3.49 percent shall be required." Accord-
ing to the Notice, "[t]hese deposit requirements are effective
for all shipments of Korean color television color receivers,
complete or incomplete, entered, or withdrawn from warehouse, for
consumption on or after the date of publication of the final
results of this administrative review [i.e., November 14, 1986,
which is also the effective date of the Notice]."
Based on the foregoing, we conclude that the cash deposit
required to be deposited with Customs for this merchandise could
not have been 3.49 percent of the entered value of the merchan-
dise because the November 14, 1986, ITA Notice specifically
provides that: "[t]hese deposit requirements are effective for
all shipments of Korean color television color receivers ...
entered ... on or after [November 14, 1986]" and the merchandise
under consideration was entered in September of 1986. Nor could
the cash deposit required to be deposited with Customs have been
14.25 percent (see the July 28, 1986, Notice of Preliminary
Review), because the deposit requirements provided for in that
Notice were to be effective for "shipments entered ... on or
after the date of publication of the final results of this admin-
istrative review" (emphasis added). Since the final results of
the administrative review to which the July 28, 1986, Notice re-
lates were published in the November 14, 1986, Notice, after the
dates of importation, the 14.25 percent cash deposit rate could
not have been applicable and, in any case, the 14.25 percent cash
deposit rate was over-ridden by the 3.49 percent cash deposit
rate set in the November 14, 1986, Notice of Final Review.
If the merchandise was "from a new exporter not covered in
[the review which was the subject of the December 28, 1984,
Notice], whose first shipments occurred after April 30, 1984, and
who is unrelated to any reviewed firm, a cash deposit of 14.88
percent [was] required" (see the December 28, 1984, Notice). If
this was not the case, a 13.90 percent cash deposit was required
under the April 30, 1984, Notice. In the absence of other
information (e.g., evidence that the exporter did not meet the
description in the December 28, 1984, Notice, quoted above), we
believe that your office was justified in using the 14.88 percent
rate to ensure that the purposes of the antidumping laws are
fulfilled.
The United States Court of Appeals for the Federal Circuit
has held that Customs may not "unliquidate" a liquidation (see
United States v. Utex International Inc., 6 Fed. Cir. (T) 166
(1988)). Customs has issued a ruling following the Court in this
regard (ruling 221591, dated February 13, 1990, copy enclosed).
Customs has held that entries of merchandise which were liquidat-
ed, with countervailing duties, in contravention of suspension
orders issued by the ITA were liquidated as a result of a mistake
of fact or inadvertence and may be reliquidated at lower counter-
vailing duty rates later determined to be applicable if relief is
timely sought under 19 U.S.C. 1514 or 1520(c)(1) (ruling 721792,
722226, dated August 3, 1983, copy enclosed).
Because the merchandise in this case was misclassified in the
initial entries, the order suspending liquidation was inappli-
cable to the entries. Therefore, the initial liquidations of the
entries were proper. Because Customs cannot "unliquidate" a
liquidation (see above), in order to ensure that the purposes of
the antidumping law are fulfilled and to protect the revenue,
Customs had no choice but to reliquidate the entries with the
antidumping duties once the misclassification was discovered. As
stated above, we believe that Customs was justified in using the
14.88 percent rate for the antidumping duties.
The protestant has timely filed protests under 19 U.S.C. 1514
against the reliquidation of the entries and the exaction of
antidumping duties at the 14.88 percentage rate. Customs cannot
"unliquidate" a liquidation or reliquidation (see the Utex Court
case discussed above). Because the final order on the amount of
antidumping duties has not been issued, Customs cannot determine
the final amount of antidumping duties to be paid. Therefore,
Customs cannot correctly liquidate the entries. If Customs is to
act at this time on the protests/applications for further review,
we must deny them because we cannot correctly liquidate the
entries. If the protests/applications for further relief are
denied, the only course of action left for the protestant to
pursue is to bring an action in the Court of International Trade.
HOLDING:
Customs may not "unliquidate" the premature reliquidation of
an entry when antidumping duties have been exacted for the entry
even though no final order on the amount of the antidumping
duties has been issued. Customs can only grant or deny the
protest of the entry. Because no final order on the amount of
antidumping duties has been issued, the protests/applications for
further review under consideration can only be denied at this
time. You are instructed to inform the protestant that Customs
is willing to withhold action on the protests, notwithstanding 19
U.S.C. 1515(a), until the ITA issues a final order on the amount
of antidumping duties, if the protestant so requests in writing.
Absent such a written request to withhold action on the protests,
the protests/applications for further review should be denied.
Sincerely,
John Durant, Director
Commercial Rulings Division
Enclosures