LIQ-4-01: RR:CR:DR
229696 RDJ
Ms. Maria Palmer, Area Port Director
US Customs Service
#1 La Puntilla St.
Old San Juan, P.R. 00901
Attn: Mr. Rafael Cuevas, Acting SIS
RE: Protest No. 4909-02-100055; Celta Agencies, Inc.
19 U.S.C. 1504(d), deemed liquidation; 19 USC 1673(a)(3)(B)
Dear Mr. Cuevas:
The above-referenced Protest was submitted by Celta Agencies (“Celta”) and forwarded for our review and determination. Our decision follows.
FACTS:
This protest relates to the assessment of antidumping duties assessed on entry number 508-XXXX718-9 entered by Celta Agencies on May 12, 1999 at the Port of San Juan, Puerto Rico.
At the time of entry (CF7501), Celta described the subject merchandise as a “re-bar, concrete re-enforcing bar and rods” classified under subheading 7214.20.000, HTSUS. Celta identified the manufacturer as Colakoglu Metalurgi, A.S. from Turkey. The entered value was about 1,4XX,XXX.00. On the CF7501, Celta identified the antidumping case # A489-807–001 with a declared ad valorem weighted-average dumping margin of 9.84% for producer/manufacturer Colakoglu Metalurgi, A.S.
The subject antidumping case was initiated in April 17, 1997 when the Department of Commerce (“Commerce”) published in the Federal Register (62 F.R. 18748 (1997)) a notice titled: Antidumping Duty Order: Certain Steel Concrete Reinforcing Bars From Turkey . It stated that Customs officers must require a cash deposit equal to the estimated weighted-average antidumping duty margin as noted below:
Producer/manufacturer/exporter
Margin
Percentage
Colakoglu Metalurji A.S. or Colakoglu Dis
9.84
Ticaret (Colakoglu
On June 2, 2000, Commerce published 65 F.R.35320 (2000): Initiation of Antidumping and Countervailing Duty Administrative Reviews. It announced the initiation of administrative reviews for various antidumping/countervailing orders including A-489-807 Turkey: Certain Steel Concrete Reinforcing Bars entered within the period of April 1, 1999, through March 31, 2000, A-489-807 ( Colakoglu Metalurji A.S./Colakoglu Dis Ticaret).
On May 4, 2000, Commerce published in 66 F.R. 22525 (2000), the preliminary results of the administrative review for the period April 1, 1999, through March 31, 2000. The margin percentage for Colakoglu Metalurji, A.S. was determined to be 10.47 %.
On November 7, 2001, Commerce published the final results of the review for the stated period (66 F. R. 56274 (2001)), Certain Steel Concrete Reinforcing Bars From Turkey; Final Results of Antidumping Duty Administrative Review . The final weighted-average dumping margins for the reviewed firms are listed below:
Manufacturer/exporter
Percent
Colakoglu Metalurji A.S.
9.51
Ekinciler Holding A.S./Ekinciler Demir Celik A.S.
6.83
The final notice went on to state that the Department of Commerce “shall determine and Customs shall assess, antidumping duties on all appropriate entries….Regarding Colakoglu, for assessment purposes, we do not have the information to calculate entered value because these companies are not the importers of record for the subject merchandise. Accordingly, we have calculated importer specific duty assessment rates for the merchandise in question by aggregating the dumping margins calculated for all US sales to each importer and dividing this amount by the total quantity of those sales. The assessment rate will be assessed uniformly on all entries of that particular importer made during the POR [period of review]. Pursuant to 19 CFR 351.106(c)(2), we will instruct the Customs Service to liquidate without regard of antidumping duties any entries for which the assessment rate is de minimis (i.e. less than 0.50 percent)”.
On December 6, 2001, Commerce published 66 F. R. 63364 (2001) Certain Steel Concrete Reinforcing Bars From Turkey; Amended Final Results of Antidumping Duty Administrative Review. It amended the final results on 66 F. R. 56274 (2001). It specifically amended the final margin for another company by the name of Ekinciler. The amendments did not pertain Colakoglu Metalurji, A.S. On January 3, 2002, Commerce issued Message No. 2003203. It notified Customs of the liquidation instructions for antidumping case # A-489-807 for the period covering April 1, 1999 to March 31, 2000. It stated:
RE: LIQUIDATION INSTRUCTIONS FOR STEEL CONCRETE REBARS FROM TURKEY PRODUCED BY COLAKOGLU METALURJI, S.A. (A-489-807-001)
FOR ALL SHIPMENTS OF CERTAIN STEEL CONCRETE
REINFORCING BARS FROM TURKEY (A-489-807-001) PRODUCED BY COLAKOGLU METALURJI,A.S. AND IMPORTED BY THE FOLLOWING COMPANIES (AS SHOWN ON THE COMMERCIAL
OR CUSTOMS DOCUMENT), AND ENTERED OR WITHDRAWN
FROM WAREHOUSE FOR CONSUMPTION DURING THE PERIOD OF 04/01/1999 THROUGH 03/31/2000, ASSESS ANTIDUMPING LIABILITIES (PER METRIC TON) AS FOLLOWS:
IMPORTER:
RATE (PER METRIC TON)
VOEST ALPINE INTETRADING………………20.86
CELTA AGENCIES ………………39.02
MACSTEEL INTERNATIONAL US CORP…….2.29
MANNESMANN PIPE AND STEEL CORP……12.80
THESE INSTRUCTIONS CONSTITUTE THE IMMEDIATE LIFTING
OF SUSPENSION OF LIQUIDATION OF ENTRIES FOR THE MERCHANDISE
LISTED ABOVE.
Based on this message, the Port liquidated entry # 508-XXXX718-9 on May 31, 2002 with antidumping duties assessed at the rate of 39.02 per metric ton.
On August 22, 2002, Celta filed a protest to this liquidation. Celta argued that the subject entry deemed liquidated by operation of law under the provisions of 19 U.S.C. 1504(d) because the liquidation occurred more than 6 months after the expiration of the statutory 6-month period established by section 1504(d). Celta argued that the six-month period for liquidation closed on May 7, 2002, that is, 6 months after Commerce published in the Federal Register (66 F R. 56274 (2001)) the final results of the administrative review under Certain Steel Concrete Reinforcing Bars From Turkey; Final Results of Antidumping Duty Administrative Review. Celta stated that the entry deemed liquidated at the rate of duty applicable at the time of entry and requested that any excess AD duties paid be refunded including interest.
The Port’s position is that the liquidation occurred within 6 months from the date (January 3, 2002) of the Administrative Message No. 2003203 which specifically instructed Customs to lift the suspension on the affected entry.
ISSUE:
Did the subject entry deem liquidate by operation of law under 19 U.S.C. 1504(d)?
LAW & ANALYSIS:
Initially, we note that the protest was timely filed under the statutory provisions for protests, 19 U.S.C. 1514 and 19 C.F.R. 174. The entry liquidated on May 31, 2002.
The subject protest was filed by Celta Agencies on August 22, 2002 within the 90-day statutory period provided by section 1514. We review this case under the provisions of section 1514(a)(5) involving the liquidation and reliquidation of an entry, or reconciliation as to the issues contained therein or any modification thereof.
Generally, antidumping duty rates correctly applied by Customs are not protestable. However, an importer may protest under section 1514, an alleged failure by Customs
to follow an instruction as issued by the Department of Commerce. The role of Customs in the antidumping process is “simply to follow Commerce’s instructions in collecting deposits of estimated duties and in assessing antidumping duties…at the time of liquidation (see, Fujitsu Ten Corporation of America v. United States 21 C.I.T. 104; 957 F. Supp. 245 (1997) and Mitsubishi Electronics America Inc. v U.S., 44 F. 3d 973 (Fed. Cir. 1994) and American Hi-Fi International, Inc. v U.S. 19 C.I.T. 1340 (1995). In cases where the scope of the antidumping duty order is unambiguous and undisputed, and the goods clearly do not fall within the scope of the order, misapplication of the order by Customs is properly the subject of a protest under 19 U.S.C. 1514 ( Xerox Corp v US 289 F. 3d 792 (Fed Cir. 2002), reversing Xerox Corp. 188 F. Supp. 2d 1353, Ct. Int’l Trade (October 19, 2000). In this case, Celta is not protesting the scope of an antidumping order, it is merely alleging that the application of the order by Customs is illegal since the entry liquidated by operation law under 19 U.S.C. 1504(d).
The issue is whether the entry should be liquidated for antidumping duties in accordance to Commerce’s instructions issued to Customs on Message No. 2003203 dated January 3, 2002 or, as the protestant contends, consider the entry “deemed liquidated” by operation of law at the rate and amount of duty asserted at the time of entry.
In International Trading Co. v. U.S. (281 F.3d 1268 (Fed Cir. 2002), reh’g denied (April 24, 2002)) the Federal Circuit interpreted the liquidation requirements as modified by the Customs Modernization Act of 1993. At the time of entry, the following version of 19 U.S.C. 1504(d) (Supp.V 1993) governed:
“The Customs Service shall liquidate the entry…within 6 months after receiving
notice from the Department of Commerce, other agency or a court with jurisdiction
over the entry. Any 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” (19 U.S.C. 1504(d)(Supp. V. 1993).
Between March 1993 and February 1994, International Trading imported towels from Bangladesh. At the time of entry, the towels were subject to antidumping duties at a rate of 2.72 %. In April, 1994 Commerce published a notice on the Federal Register announcing that it would conduct an administrative review of the period covering March 1, 1993 to February 28, 1994. On February 12, 1996, Commerce published the final results in the Federal Register and announced an antidumping rate of 42.31% for the company in Bangladesh. This notice advised Customs not to liquidate any entries until further notice. On August 26, 1996, Commerce sent a “non-public” message to Customs and directed Customs to liquidate and assess antidumping duties at 42.31% on the affected entries. Customs liquidated the entries on October 30, 1996 at a rate of 42.31%. ITC filed a protest and claimed that the entries deemed liquidated by operation of law at the rate asserted at the time of entry (2.72%), that is, because Customs did not liquidate within 6 months after receiving notice of the removal of suspension of liquidation. International Trading argued that the removal of the suspension occurred upon the publication of the final results of the administrative review in the Federal Register. The Court found that the six-month liquidation period under the Customs Modernization Act began with Commerce’s publication in the Federal Register of the notice of the final results of administrative review. In the Celta case, November 7, 1997 is the date that Commerce published the final results in the Federal Register of the review for the period covered in the entry . As stated above, Commerce notified Customs of the liquidation instructions on January 3, 2002.
There have been relevant statutory changes to section 1504(d) which need to be considered. In International Trading, the amendments to section 1504(d) were not analyzed since the entries concerned the pre-1994 version of 1504(d). The present version of 1504(d) makes, the outcome which resulted in the International Trading case, inapplicable to the facts of the present protest.
The Uruguay Round Agreements Act (“URAA”), which was passed in 1994, amended 19 U.S.C. 1675(a)(3) by requiring the liquidation for antidumping and countervailing duties based on Commerce’s final results of administrative review “within 90 days after the instructions to Customs are issued”. In the same legislation, Congress amended section 1504(d) to read:
Except as provided in section 1675(a)(3) of this title, when a suspension required
by statute or court order is removed, the Customs Service shall liquidate the entry
within 6 months after receiving notice of removal from the Department of
Commerce…Any entry not liquidated by the Customs Service within 6 months
after receiving such notice shall be treated as shaving 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 USC 1504(d) as amended in 1994).
The changes made to section 1504(d), as mandated by the URAA, are to be applied in resolving the liquidation issue on this case. These changes indicate an intent to create an exception for countervailing and antidumping entries. Section 1504(d) cross-references to section 1675(a)(3) and it is this section which provides for the liquidation of entries subject to antidumping or countervailing duties administrative reviews. Because the entry in issue was subject to an administrative review, the liquidation provisions of 1675(a)(3)(B) apply to Celta’s case. The provision in 19 U.S.C. 1675(a)(3)(B) states:
Liquidation of entries. If the administering authority orders any liquidation of
entries pursuant to a review under paragraph (1), such liquidation shall be made
promptly and, to the greatest extent practicable, within 90 days after the instructions
to Customs are issued. In any case in which liquidation has not occurred within that
90-day period, the Secretary of the Treasury shall, upon the request of the affected
party, provide an explanation thereof.
The “except” clause in 1504(d), as amended in 1994 incorporates section 1675(a)(3) by reference. By means of 1675(a)(3)(B), if Commerce orders liquidation, the liquidation “shall be made promptly and to the greatest extent practicable, within 90 days after the instructions to Customs are issued”. Entries subject to section 1675(a)(3)(B) are excluded from coverage of section 1504 by substituting the liquidation requirements of subsection B for those of section 1504(d). If Customs does not liquidate the entries within that 90-day period, the statute gives the affected party the right to invoke a special remedy (i.e. the right to obtain an explanation for the delay). We find that the language contained in the “except as provided”, is an indication that Congress intended section 1675(a)(3) to operate distinctively in the liquidation of countervailing and antidumping administrative reviews (“A change in the language of a statute is generally construed to import a change in meaning” (Bausch and Lomb Inc. v U.S. 148 F. 3rd 1363, 1367 (Fed Cir. 1998)).
Since section 1675(a)(3)(B) provides a specific liquidation of 90 days after the instructions to Customs are issued, the time period under 1504(d) would not apply. Even if, section 1504(d) were to apply, the provisions of 1675(a)(3)(B) could not be ignored. In such case and, in conformance to section 1675(a)(3)(B), the time to liquidate would commence at the time when Commerce issues liquidation instructions to Customs that the suspension on affected entries was removed.
On April 17, 1997, Commerce issued the antidumping order in the Federal Register Antidumping Duty Order: Certain Steel Concrete Reinforcing Bars from Turkey (62 Fed Reg. 18748). It stated that the ad valorem weighted average dumping margins for Colakoglu Metalurji A.S.or Colakoglu Dis Ticaret (Colakoglu) was 9.84 margin percentage. Upon entry, on May 12, 1999, Celta declared that the merchandise was subject to antidumping case # A 489-807 and made a deposit of antidumping duties in the rate of 9.84 percent margin. On June 2, 2000, Commerce announced the initiation of the administrative review for the period covering entries made between April 1, 1999 and March 31, 2000. On November 7, 2001, the final results of the stated review were published in 66 Fed. Reg.56274. It said that for the stated period of review, the weighted- average margin percentage for Colakoglu Metalurji A.S. was 9.51 percent margin. On December 6, 2001, Commerce published an amendment in 66 Fed Reg. 63364 correcting an error in the margin calculation for another Turkish company, Ekinciler. The amendment had no relation to the margins established for Colakoglu. On January 3, 2002, Commerce issued Message No. 2003203 to Customs announcing the liquidation instruction for antidumping case #A-489-807 for the period covering April 1, 1999 to March 31, 2000. In accordance to the amended version of 1504(d), which is conditioned by 1675(a)(3)(B), the liquidation must take place within 90 days after the instructions to Customs are issued. On May 31, 2002 the Port liquidated the subject entry with antidumping duties assessed at 39.02 rate (per metric ton). We hold that the liquidation occurred timely, as established by section 1504(d) and 1675(a)(3).
HOLDING Protest should be denied.
In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with Customs Form 19 to the protestant no later than sixty (60) days from the date of this letter. Any reliquidation of the entry or entries in accordance with this decision must be accomplished prior to mailing of the decision. Sixty (60) days from the date of the decision the Office of Regulations and Rulings will make this decision available to Customs personnel and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, the Freedom of Information Act and other public access channels.
Sincerely,
Myles Harmon, Acting Director
Commercial Rulings Division