LIQ-4-01-CO:R:C:E 224650 PH
District Director of Customs
423 Canal Street
New Orleans, Louisiana 70130
RE: Protest 2002-92-101740; Antidumping Duties; Effective Date
of Public Law 94-410, section 209(a); "Absurd Consequences"
Doctrine of Statutory Interpretation; Laches; 19 U.S.C.
The above-referenced protest was forwarded to this office for
further review. At the request of the protestant, action on the
protest was suspended to given the protestant the opportunity to
submit additional materials. Also at the request of the
protestant, a meeting was held on October 14, 1994, between
officials of this office and the representative of the
protestant. At that meeting it was agreed that the protestant
would be given 30 days from the date of the meeting to submit
additional materials, after which the protest would be analyzed
and ruled upon based on the materials/arguments then available.
No additional materials were submitted after this meeting.
Copies of all materials submitted by the protestant which you may
not have are enclosed for your file.
Our decision follows.
According to the file and Customs records, between December of
1973 and May of 1974, the protestant entered certain merchandise
(DL Methionine) from Japan. The merchandise was entered in four
entries, which are the entries protested in this protest. The
merchandise under consideration was the subject of an antidumping
finding (Treasury Decision (T.D.) 73-188). T.D. 73-188 made
public determinations constituting a finding of dumping with
respect to synthetic methionine from Japan and added that finding
of dumping to the list of dumping findings in 19 CFR 153.43.
Previous notices in the Federal Register had given notice of an
antidumping proceeding (37 F.R. 17768, August 31, 1972); notice
of withholding of appraisement (38 F.R. 4525, February 15, 1973);
notice of investigation and hearing (38 F.R. 5212, February 26,
1973; 38 F.R. 6242, March 7, 1973); and notice of determination
of injury (38 F.R. 13065, May 18, 1973).
In a March 28, 1980, Federal Register notice (45 F.R. 20511), the
International Trade Administration (ITA) of the Department of
Commerce gave notice that it was conducting an administrative
review of findings of dumping, including the finding of dumping
in T.D. 73-188. In an August 13, 1981, Federal Register notice
(46 F.R. 40913), the ITA gave notice that it had conducted an
administrative review of the dumping finding under consideration
covering "separate time periods for each of the firms through
June 30, 1980." For the firm under consideration during the
period "2/12/73-6/30/80" the dumping margin of 48% was found to
exist. In the notice it was stated that Customs shall assess
dumping duties on all entries made with purchase dates or export
dates, as appropriate, during the time periods involved and that
the ITA would issue appraisement instructions separately on each
exporter directly to Customs.
In Customs Information Exchange (C.I.E.) 394/72, Supplement 36,
dated March 5, 1982, notification of specific action for the
merchandise under consideration exported by the corporation under
consideration was published. According to this C.I.E., all
shipments of the merchandise exported to the United States by the
corporation and purchased during the period February 12, 1973,
through June 30, 1980, were to be assessed a dumping liability
equal to 48 percent. Also according to the C.I.E., liquidation
of the subject entries was to be suspended. The C.I.E. required
the filing of a "reimbursement statement", and provided that each
entry on which duty was to be assessed must be covered by such a
statement prior to appraisement and liquidation. In Telex 06815,
dated April 6, 1982, instructions were issued stating "this telex
constitutes the lifting of suspension of liquidation (as of April
12, 1982) for all entries of synthetic DL methionine with
purchase or export dates, as appropriate, included in the time
periods in 2 above [2/12/73-06/30/80 for the corporation under
Each of the four protested entries was liquidated on September
25, 1992, with anti-dumping duties in the total amount of
$48,617. A "reimbursement statement" (see above), dated August
18, 1992, had been sent to the Customs office which liquidated
the protested entries and is included in the file.
On December 22, 1992, the protestant filed the protest under
consideration. The basis for the protest was stated to be:
"Excessive dumping duties were illegally assessed on the DL
Methionine in the subject four entries. The statement of claims
and argument are attached hereto, which establish that the
subject entries should be liquidated 'as entered.'"
In a Memorandum in Support of Application for Further Review, the
protestant contends that the assessment of dumping duties on the
DL Methionine in the protested entries was void because the
entries should have been deemed liquidated with the duty rate
assessments required to be made as at the time of entry. The
protestant also claims that the assessments were in violation of
the instructions issued by Customs in T.D. 73-188 and by the
International Trade Administration in 1982. The protestant
contends that the delays involved in this case "demonstrate
administrative laches and nonfeasance that negate the purported
liquidations [since] [m]ore than six years elapsed from entry to
the review begun in 1981 ... and more than ten additional years
went by before the instructions of April 1982 were followed."
The protestant cites Ambassador Division of Florsheim Shoe v.
United States, 3 Fed. Cir. (T) 28, 748 F. 2d 1560 (1984); Rector,
Etc., of Church of the Holy Trinity v. United States, 143 U.S.
457, 12 S. Ct. 511 (1892); and Pagoda Trading Corp., v. United
States, 5 Fed. Cir. (T) 10, 804 F. 2d 665 (1986). Based on these
cases, the protestant argues that under the "absurd consequences"
doctrine in the Church of the Holy Trinity case, "it would
demonstrably be an erroneous construction to conclude that
Congress intended to leave all entries made prior to the
effective date of that provision [i.e., 19 U.S.C. 1504(d)] open
to perpetual ambiguity and uncertainty."
In a Supplement to the Memorandum in Support of Application for
Further Review, repeats the arguments made in the Memorandum in
Support of Application for Further Review. The protestant makes
the additional argument that "[t]he excessive administrative
delay here, a genuine paradigm of laches, even more dramatically
[i.e., than in Pagoda Trading Corp, supra] abuses the due process
rights of this importer. The protestant cites American Permac,
Inc. v. United States, 10 CIT 535, 642 F. Supp. 1187 (1986), and
argues that in this case the importer does not have available to
it the remedies described in that case. The protestant
concludes: "If the absurd consequences of sanctioning delays of
18 and 19 years is not to be imputed as intended by Congress, in
the face of [19 U.S.C. 1504(d)], this protest should be allowed."
Further review was requested and granted.
May the protest in this case be granted?
LAW AND ANALYSIS:
Initially, we note that the protest was timely filed (i.e.,
within 90 days of the date of liquidation; see 19 U.S.C.
1514(c)(2)). The decisions protested are protestable under 19
U.S.C. 1514 (the exception in 19 U.S.C. 1514(b) (see, Nichimen
America, Inc. v. United States, 938 F. 2d 1286 (1991 Fed. Cir.))
is not applicable because Customs implementation of the ITA
instructions for assessing antidumping duties is protested, not
the antidumping determination itself).
In regard to the contention that the dumping duties were assessed
in violation of the instructions issued by Customs in T.D. 73-188
(published in the Federal Register on July 10, 1973 (38 F.R.
18382)) and by the International Trade Administration in 1982,
the protestant has not provided any evidence to establish this
contention. In each of the entries under consideration, the
antidumping duties assessed were equal to 48 percent. This was
the dumping margin found to exist by the ITA for the merchandise
under consideration for the corporation under consideration and
instructed to be applied to shipments of merchandise during the
period covering the entries under consideration. Thus, based on
the evidence available to us, dumping duties were assessed in
accordance with the applicable instructions. The protest must be
DENIED in this regard.
The protestant also contends that the entry should have been
deemed liquidated as entered. The protestant cites 19 U.S.C.
1504(d) in this regard. At the time of the liquidation under
consideration, that provision provided that for merchandise the
liquidation of which continues, at the expiration of four years
from the date of entry, to be suspended as required by statute or
court order, the entry shall be liquidated within 90 days after
the suspension of liquidation is removed (the provision has since
been amended by section 641, Title VI, NAFTA Implementation Act,
Public Law 103-182, 107 Stat. 2057, 2204). The "deemed
liquidation" provisions were enacted by Public Law 94-410,
section 209(a), 92 Stat. 902. These provisions were made
effective "to the entry or withdrawal of merchandise for
consumption on or after 180 days after the enactment of this Act
[October 3, 1978]" (Section 209(b), Pub.L. 95-410). See F.W.
Myers & Co., Inc. v. United States, 9 CIT 64, 607 F. Supp. 1470
(1985); and Peugeot Motors of America, Inc. v. United States, 8
CIT 167, 595 F. Supp. 1154 (1984), applying this effective date
to section 1504.
In the F.W. Myers case merchandise was entered in 1975 and 1976
and liquidated in 1983. In response to the plaintiff's arguments
that the "deemed liquidation" provisions of section 1504 applied
to the entries on the basis of the legislative history thereof,
the Court stated:
Resort to legislative history, however, is unwarranted
where a statute is unambiguous on its face. ... As this
Court previously noted, entries made prior to the effective
date of the statute are not subject to the time constraints
of 19 U.S.C. 1504. ... The entries involved herein were
made well before the effective date of the statute, in this
case, April 1, 1979. The requirements of 19 U.S.C. 1504
do not apply to entries made prior to that date. A plain
reading of the involved provisions discloses no mention of
their retroactive application, as asserted by plaintiff.
[9 CIT at 64]
The protestant attempts to circumvent the fact that the "deemed
liquidation" provision was not effective to the entries under
consideration (i.e., the statute was made effective to the entry
or withdrawal of merchandise for consumption on or after April 1,
1979, and the merchandise under consideration was entered in 1973
and 1974) by use of the "absurd consequences" doctrine. That is,
the protestant contends that it would be absurd "to conclude that
Congress intended to leave all entries made prior to the
effective date ... open to perpetual ambiguity and uncertainty."
The protestant cites Church of the Holy Trinity, supra, and
Ambassador Division of Florsheim Shoe, supra, in this regard.
The latter case cited the former as "[a] classic case, still
often cited" for the application of this doctrine, and described
the doctrine as follows, quoting from Church of the Holy Trinity:
It is a familiar rule, that a thing may be within the
letter of the statute and yet not within the statute,
because not within its spirit, nor within the intention of
its makers. [3 Fed. Cir. (T) at 32, quoting from 143 U.S.
Subsequent to the Church of the Holy Trinity decision, the
Supreme Court addressed the doctrine in Crooks v. Harrelson, 282
U.S. 55, 60, 51 S. Ct. 49, 50 (1930). In the Crooks case, the
Supreme Court stated:
... a consideration of what is there [i.e., in Church of
the Holy Trinity] said will disclose that the principle is
to be applied to override the literal terms of a statute
only under rare and exceptional circumstances. The
illustrative cases cited in the opinion demonstrate that,
to justify a departure from the letter of the law upon that
ground, the absurdity must be so gross as to shock the
general moral or common sense. ... And there must be
something to make plain the intent of Congress that the
letter of the statute is not to prevail. [See also,
Sturges v. Crowninshield, 4 Wheat. 122, 202-203 (1819),
"But if, in any case, the plain meaning of a provision, not
contradicted by any other provision in the same instrument,
is to be disregarded, because we believe the framers of
that instrument could not intend what they say, it must be
one in which the absurdity and injustice of applying the
provision to the case, would be so monstrous, that all
mankind would, without hesitation, unite in rejecting the
application"; and Tennessee Valley Authority v. Hill, 437
U.S. 153, 98 S. Ct. 2279 (1978); De Ruiz v. De Ruiz, 88 F.
2d 752, 754 (D.C. Cir. 1936); Hart v. United States, 585 F.
2d 1025, 1033 (Ct. Cl. 1978).]
Clearly, in this case, there is no absurdity "so gross as to
shock the general moral or common sense" or "so monstrous, that
all mankind would, without hesitation, unite in rejecting the
application", nor is there anything making "plain the intent of
Congress that the letter of the statute is not to prevail."
Indeed, the consequence that the protestant argues is absurd
(i.e., to conclude that Congress intended to leave all entries
made prior to the effective date of section 1504(d) open to
perpetual ambiguity and uncertainty) is not, in fact, at all
absurd. Before enactment of the provision under consideration,
"[t]here [was] no ... law requiring liquidation to be completed
within a specific time period", as recognized in the legislative
history to Public Law 95-410 (Senate Report (Finance Committee)
95-778, 95th Cong., 2d Sess., 31, reprinted in 1978 U.S.C.C.A.N.
2211, 2242; see also Ambassador Division of Florsheim Shoe, supra
("[t]he prior law had been that Customs might delay liquidation
as long as it pleased ...", 3 Fed. Cir. (T) at 30)). In Public
Law 95-410, Congress changed this rule. In enacting this change,
Congress specifically provided that the change "applie[d] to the
entry or withdrawal of merchandise for consumption on or after
180 days after the enactment of [the] Act" (Public Law 95-410,
section 209(b), 92 Stat. 903). The primary purpose for the
legislation was to "increase certainty in the customs process ...
(Senate Report 95-778, supra, 1978 U.S.C.C.A.N. at 2243); see
also Ambassador Division of Florsheim Shoe, supra, 3 Fed. Cir.
(T) at 33).
That is, Congress recognized the prior law and then changed that
law, effective on a date certain. Not only is this not absurd,
it is consistent with the presumption against retroactivity in
the interpretation of statutes (see Bowen v. Georgetown
University Hospital, 488 U.S. 204, 208, 109 S. Ct. 468, 471
(1988)), which was resoundingly confirmed in the 1994 Supreme
Court case of Landgraf v. USI Film Products, 114 S. Ct. 1483. To
adopt the protestant's position in this regard would result in
the retroactive application of the statute under consideration to
transactions which occurred more than four years prior to the
effective date of the statute. Furthermore, accepting the
clearly stated effective date of the provision under
consideration is consistent with the purpose of the provision, to
provide certainty in Customs transactions (i.e., because the
retroactive application of a statute, by its very nature,
increases uncertainty in the transactions to which the statute
applies (see, Landgraf, supra, 114 S. Ct. at 1500)).
The application of the statutory provision under consideration in
the situation under consideration is not an absurdity "so gross
as to shock the general moral or common sense" justifying the
application of the doctrine in the Church of the Holy Trinity
case. Rather, as was held in F.W. Myers, supra (see quotation
above), this is a matter governed by the primary rule of
statutory construction, i.e.: "[w]hen interpreting a statute a
court first must examine the statutory language [and] [i]f the
language of the statute is clear and unambiguous, judicial
inquiry is complete and that language controls absent rare and
exceptional circumstances (In re Perroton v. Gray, 958 F. 2d 889,
893 (9th Cir. 1992), and cases cited therein). In this case, the
statute clearly and unambiguously provides that the provision
under consideration is effective to entries or withdrawals of
merchandise for consumption on or after April 1, 1979, well
before the entries under consideration. The protest is DENIED in
In regard to the argument by the protestant that relief should be
granted on the basis of laches, we note that laches is an
equitable doctrine (see, e.g., A.C. Aukerman Co. v. R. L. Chaides
Const. Co., 960 F. 2d 1020, 1030-1031 (Fed. Cir. 1992); Robins
Island Preservation Fund v. Southold Dev., 959 F. 2d 409, 423-424
(2nd Cir. 1992)). 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, the
doctrine of laches is not available in this case.
Even if the doctrine of laches were available in a case such as
this, the protestant has not established that the doctrine is
applicable in this case. That is, "[t]he imposition of laches
requires both unreasonable delay by the petitioner, and prejudice
to the respondent because of the delay [and furthermore,]
[l]aches is an affirmative defense, and the burden of proving
both elements rests with the party raising it" (Hoover v.
Department of Navy, 957 F. 2d 861, 863 (Fed. Cir. 1992), emphasis
added; see also, Costello v. United States, 365 U.S. 265, 282, 81
St. Ct. 534, 543 (1961)). In this case, the protestant has not
established prejudice (i.e., according to all information
available, the entries under consideration were subject to an
antidumping margin of 48% and that was the margin which was
On the basis of the foregoing (i.e., because laches is not
available in a case involving the collection or refund of duties
on imports and, even if it were available, in this case the
protestant has not met the requirements for application of
laches) the protest must be DENIED in regard to this issue.
The protest is DENIED.
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.
John Durant, Director
Commercial Rulings Division