LIQ-4-01/LIQ-13/LIQ-11-CO:R:C:E 225323 AJS
District Director of Customs
U.S. Customs Service
4430 East Adamo Drive, Suite 301
Tampa FL 33605
RE: Protest 1801-94-100006; frozen orange juice; refund of
antidumping duties; entry liquidated when antidumping duty
suspension in effect; 19 U.S.C. 1514(c)(2); 19 CFR 159.9; Sea-Land Services, Inc. v. United States; United States v. Utex
International, Inc.; HQ 223482; Juice Farms, Inc., v. United
States.
Dear Sir or Madame:
This is our decision in protest 1801-94-100006, dated
February 18, 1994, concerning the refund of antidumping duties.
FACTS:
The subject merchandise consists of frozen concentrated
orange juice which was entered on September 25, 1989. The
Customs Form (CF) 7501 indicates that the protestant tendered a
cash deposit of $36,273.92 in antidumping duties, representing
1.96% of the entered value. The 1.96% antidumping duty cash
deposit was required by an antidumping duty order. See 52 Fed.
Reg. 16426 (May 5, 1987).
The CF 6445A indicates that the CF 7501 was prepared by the
customs broker with an "01" entry type (i.e., code for
consumption entry) in box 2 instead of an "03" entry type (i.e.,
code for consumption entry subject to antidumping or
countervailing duty). Consequently, the entry was never entered
into suspended status and thus it was liquidated "no change" on
February 2, 1990. In addition, the broker prepared the CF 7501
erroneously by including antidumping duties as part of the total
duties collected in box 37. The antidumping duties were not
separated from the regular duties as required and entered in Box
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39. There is also no evidence on the invoice indicating that the
merchandise was manufactured by Frutropic S.A. (i.e., the
manufacturer subject to antidumping duties). The name, Frutropic
S.A., only appears on the packing list which does not identify
Frutropic as a manufacturer.
On October 21, 1991, the Department of Commerce (DOC) issued
the final results of its administrative review of the antidumping
duty order for the period May 1, 1989 through April 30, 1990.
See 56 Fed. Reg. 52510 (October 21, 1991). The DOC assigned to
Frutropic a weighted-average dumping margin of 0.06% for all
shipments during the period. Through Telex 2360111 (December 26,
1991), Counsel for the protestant claims that Customs field
personnel were instructed to assess final dumping duties on all
of Frutropic's imports during the subject period.
On December 17, 1993, the protestant sent a letter to
Customs inquiring about the refund status of the subject entry.
On December 28, 1993, Customs responded that liquidation of the
entry occurred on February 2, 1990, without any payment or refund
of antidumping duties. A search of Customs computer records
supports a liquidation date of February 2, 1990.
ISSUE:
If liquidation of an entry is suspended under the Anti-
dumping law but Customs erroneously liquidates the entry, may
relief be granted under 19 U.S.C. 1514 when relief is applied for
more than 90 days after liquidation.
LAW AND ANALYSIS:
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 (North American Free Trade Agreement Implementation Act
(NAFTA), 107 Stat. 2057, 2206-2207)), the liquidation 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. A search of Customs computer
records indicates the date of liquidation for the subject entry
was February 2, 1990. The subject protest was filed on February
18, 1994, which is more than 90 days after the date of
liquidation. Therefore, the subject protest was not timely filed
and the liquidation at issue is final and conclusive upon all
persons.
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On December 17, 1993, the protestant sent a letter to
Customs inquiring about the refund status of the subject entry.
On December 28, 1993, Customs responded that liquidation had
occurred on February 2, 1990, without any payment nor refund of
antidumping duties. Counsel for the protestant asserts that the
letter of December 28 is the protestant's notice of liquidation,
and since the subject protest was filed within 90 days of this
date that the protest was thus timely filed.
19 CFR 159.9(a) provides that notice of liquidation of
formal entries shall be made on a bulletin notice of liquidation,
CF 4333. The courts have stated that "[n]otice of liquidation is
intended to apprise importers of any action which may affect
their interests, and to afford them opportunity to secure
administrative and judicial review." Goldhofer Fahrzeugwerk GmbH
& Co. v. United States, 706 F. Supp. 892, aff'd 885 F.2d 858,
reh'g denied, suggestion for reh'g declined, cert. denied 110 S.
Ct. 1946 (1989). Part 159.9(b) states that "[t]he bulletin
notice of liquidation shall be posted for the information of
importers in a conspicuous place in the customhouse at the port
of entry . . ." The courts have also stated that "[i]mporters
bear the burden of examining all notices posted in customhouse to
determine whether its goods have been liquidated, and to protest
timely." Penrod Drilling Co. v. United States, 727 F. Supp.
1463, reh'g dismissed, motion to set aside dismissed, 740 F.
Supp. 858 (1989).
Counsel asserts that it has not uncovered any bulletin
notice of liquidation. Customs procedure establishes the time
for destruction of bulletin notices of liquidation to be three
years from the date of posting (i.e., February 2, 1993 in this
case). See Records Control Handbook, CIS HB 2100-05 (January
1990). Consequently, the posted bulletin notice for the subject
entry no longer exists. However, government officials are
entitled to a presumption that their duties are performed in the
manner required by law. Star Sales & Distributing Corp. v.
United States, 10 CIT 709, 710, 663 F. Supp. 1127, 1129 (1986).
A memorandum from your district states it is the practice and
policy of the District to post all bulletin notices in accordance
with 19 CFR 159.9(b). Therefore, we presume that Customs
officials posted a bulletin notice of liquidation for the subject
entry on February 2, 1990. A search of Customs computer records
supports this presumption by indicating that the subject entry
was liquidated on February 2, 1990. The courts have stated that
this presumption regarding government officials is not
conclusive, and may be rebutted by a declaration or other
evidence. International Cargo & Surety Ins. Co. v. United
States, 15 CIT 541 (1991). In this case, Counsel simply claims
that it has not uncovered any bulletin notice for the subject
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entry. We assume that the protestant did not attempt to uncover
such a notice until after December 28, 1993 (i.e., when it claims
to have received notice of liquidation). As stated previously,
any notice would have been destroyed by this date. Therefore,
the protestant has not rebutted the presumption that notice was
posted. Consequently, we continue to adhere to our previous
determination that the subject entry was liquidated on February
2, 1990, and inasmuch as a protest was not filed within 90 days
of this date, this liquidation is final and conclusive on all
persons pursuant to section 1514.
Counsel alternately asserts that even if a bulletin notice
was posted, it would have provided inadequate notice of
liquidation. Counsel specifically asserts that such notice was
misleading or confusing because it stated the entry was
liquidated with "no change". The CF 7501 indicates that the
total deposited duty amount was $671,802.85, consisting of
$635,528.93 in regular duties and $36,273.92 in antidumping
duties. A "no change" liquidation would indicate that Customs
liquidated this amount in duty. Customs computer records support
the conclusion that the liquidated duty amount was $671,802.85.
Such a liquidation should have alerted the protestant to the fact
the Customs was liquidating its antidumping duties before a final
determination was concluded. From the substance of counsel's
final argument, we assume that the protestant was not checking
the bulletin notices for the subject entry. If the protestant
had examined the posted notices as required, it would have been
alerted to the liquidation of its antidumping duties and been
able to protest the liquidation. In addition, we note that part
of the reason the liquidation notice may have been misleading was
due to the broker's errors in preparing the CF 7501. These
errors caused Customs failure to suspend the subject entry as
well as realize that antidumping duties were deposited.
Accordingly, we conclude that the bulletin notice of liquidation
would not have been misleading or confusion and thus would have
provided adequate notice of liquidation so that the protestant
could have protected its interests.
Counsel also claims that the telex 2360111 of December 26,
1991 induced the protestant to believe the suspension of
liquidation for its entries continued and thus any premature
bulletin notice did not provide legally effective notice of
liquidation. See Sea-Land Services, Inc. v. United States, CIT
Slip Op. 93-13, printed at Customs Bulletin & Decision, vol. 27,
no. 7, p. 38 (February 17, 1993); vacated 829 F.Supp 393 (CIT
1993). In Sea-Land, Customs liquidated the entry in question by
bulletin notice on May 25. On May 30, Customs notified Sea-land
by letter that its entry "will be liquidated". Sea-Land
subsequently filed a protest eighty-nine days after the May 30
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letter. Customs denied the protest as untimely because it was
not filed within 90 days after the May 25 bulletin notice. The
court in Sea-Land stated that based on the May 30 letter, it was
very possible for Sea-land to be unsure as to the date of
liquidation and, thus, Sea-land acted reasonably in relying on
Customs letter of May 30 which indicated that the entry had not
been liquidated as of yet. Id. at 40. The court concluded that
the statutory ninety-day period was tolled from May 25 until May
30 so that the protest was timely filed. Id. at 41. The court's
rationale was based on the fact that Customs' erroneous letter
induced Sea-Land to allow the filing deadline to pass, and that
the plaintiff should not be deprived of its rights due to the
sloppiness of Customs. Id. The court noted that while the
Federal Courts have typically extended equitable relief only
sparingly, equitable tolling has been allowed where the
complainant has been induced or tricked by his adversary's
misconduct into allowing the filing deadline to pass. Id.
Even if Sea-Land was not vacated, this protest is markedly
different factually. In this case, no information was provided
during the protest period to induce the protestant into allowing
the filing deadline to pass. The telex of December 26, 1991, was
issued more than twenty-two months after the date of liquidation
and not with the 90-day protest period as in Sea-Land. In
addition, no course of action was open to the protestant on
December 26 for it to be induced from pursuing because the
liquidation of the subject entry was final in May of 1990.
Therefore, we do not find the decision rendered in the vacated
Sea-Land case instructive for resolving the protest in question.
Counsel lastly asserts that since Customs was required by
law and DOC instructions to suspend liquidation of the subject
entry, the protestant had no duty to seek out liquidation notices
during the periods when liquidation was suspended by law. Based
on the following cases, we disagree with this assertion.
The Court of Appeals for the Federal Circuit addressed a
similar issue in United States v. Utex International, Inc.
(Utex), 6 Fed. Cir. (T) 166, 857 F. 2d 1408 (1988). That 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 19 CFR 159.55, liquidation was required to be
suspended). The court rejected the "void" liquidation doctrine.
Id. at 170. The court noted that in such a situation, the courts
have "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."
Id. The court concluded (with regard to this issue):
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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. Id. at 172.
Customs also addressed a similar issue in Headquarters
Ruling Letter (HQ) 223482 (December 20, 1994). The protestant in
that case argued the entries under consideration were never
actually liquidated and that the "putative" liquidations were
void because of the suspension of liquidation under the
Antidumping law. Customs ruled that 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. Customs further
added that as the court stated in Omni (i.e., Omni U.S.A., Inc.
v. United States, 6 Fed. Cir. (T) 99, 840 F.2d 912 (1988)) "the
refusal by customs to correct [the errors in liquidation] upon
untimely notice was correct, and 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 &
Decision, 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 liquidation 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 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 liquidation" Id. at 23. The
court also rejected the plaintiff's argument 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
liquidation within 90 days of notice [and] [i]f the importer
fails to protest in a timely manner, then liquidation becomes
final" Id. at 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,
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"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 24.
HOLDING:
The protest is denied. When liquidation of an entry is
suspended under the Antidumping law but Customs erroneously
liquidates the entry, relief may not be granted under 19 U.S.C.
1514 when such relief is not applied for within 90 days after
liquidation.
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.
Sincerely,
John Durant, Director
Commercial Rulings Division