LIQ-4-01-RR:IT:EC 226417 AJS
Port Director of Customs
U.S. Customs Service
4430 East Adamo Drive
Tampa, FL 33605
RE: Timely liquidation of antidumping duties; 19 U.S.C. 1504;
Dart Export Corp. v. U.S.; HQ 224162; laches; equitable estoppel;
Pasco Terminals, Inc. v. U.S.
Dear Sir or Madame:
This is in reply to your correspondences concerning protest
1801-79-000005, dated March 16, 1979, which we received on
September 5, 1995, concerning the application of antidumping
duties.
FACTS:
The protestant provided the following chronology of events.
On April 6, 1971, Customs published in the Federal Register (36
Fed. Reg. 6526) an Antidumping Proceeding Notice on elemental
sulfur (i.e., the subject merchandise) from Mexico.
On November 6, 1971, Customs published in the Federal
Register (36 Fed. Reg. 21364) a Withholding of Appraisement
Notice.
On February 5, 1972, the Department of Treasury published in
the Federal Register (37 Fed. Reg. 2793) a determination, dated
February 3, 1972, that "elemental sulfur from Mexico is being, or
is likely to be, sold at less than fair value . . ."
On May 4, 1972, the U.S. Tariff Commission (USTC) notified
the Secretary of Treasury "that an industry in the United States
is being injured by reason of imports from Mexico of sulphur sold
or likely to be sold at less than fair value."
On May 10, 1972, the USTC published in the Federal Register
(37 Fed. Reg. 9417) its opinion determining injury.
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On June 28, 1972, the Secretary of the Treasury published in
the Federal Register (37 Fed. Reg. 12727) a notice making public
a finding of dumping with respect to elemental sulfur from
Mexico.
The protest at issue involves three entries. Entry 1 was
entered on November 30, 1971, entry 2 was entered on January 27,
1972, and entry 3 was entered on February 8, 1972. All three
entries were liquidated on February 23, 1979.
ISSUE:
Whether the subject entries were timely liquidated.
LAW AND ANALYSIS:
Initially, we note that the subject protest was timely filed
in 1979 pursuant to 19 U.S.C. 1514(b)(2) (1979). The date of
decision as to which protest is made was February 23, 1979, and
the date of this protest is March 16, 1979. We also note that
the liquidation of an entry was protestable pursuant to 19 U.S.C.
1514(a)(5) (1979). We additionally note that section 1514 was
amended concerning issues not related to the filing deadline of
or the subject matter of protests. See Pub. L. 96-39, Title X,
section 1001(b)(3), 93 Stat. 305 (July 26, 1979). The effective
date of these amendments was January 1, 1980. Id. at sect. 1002.
These amendments to section 1514 do not apply with respect to any
protest filed before January 1, 1980. Id. at sect.
1002(b)(1)(A). Therefore, these amendments do not apply to the
subject protest because it was filed on March 16, 1979.
Liquidation has been defined as "the final computation by
the Customs Service of all duties (including any antidumping or
countervailing duties) accruing on that entry." American Permac,
Inc. v. United States, 10 CIT 535, 537 (1986). The Customs
Procedural Reform and Simplification Act of 1978 (the Act)
provides in section 209(a), 19 U.S.C. 1504, that an entry is
deemed liquidated as entered if Customs has not liquidated the
entry within one year from the date or withdrawal from warehouse.
The Act was effective as to entries or withdrawals for
consumption on or after 180 days after the enactment of the Act
(i.e., October 3, 1978). Thus, only entries or withdrawals made
on or after April 1, 1979, were covered by the Act.
Previous to the Act, there was no time limit for the
liquidation of an entry. Dart Export Corp. et al. v. United
States, 43 CCPA 64, C.A.D. 610 (1956), cert. denied, 352 U.S.
824, 77 S. Ct. 33, 1 L. Ed. 2d 48 (1956). The Court in Dart
Export stated that the law prescribed no time limit within which
the collector shall make the original liquidation. This
conclusion is supported by the legislative history of the Act.
In the statement of Reason for Change contained in S. Rep. No.
95-788 at 832, it is stated:
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Reason for change.-- The provision adopted by the committee
[section 209] would increase certainty in the customs
process for importers, surety companies, and other third parties with a potential liability relating to a customs
transaction. Under the present law, an importer may learn
years after goods have been imported and sold that additional
duties are due, or may have deposited more money for estimated
duties than are actually due but be unable to recover the
excess for years as he awaits liquidation . . .
The entries at issue were made in 1971 and 1972. As stated
above, the time constraints provided for under 19 U.S.C. 1504
only apply to entries made on or after April 1, 1979. Therefore,
the subject entries were not deemed liquidated by operation of
law. See HQ 224162 (May 5, 1993) for a similar discussion of
this issue.
We also note that neither the doctrine of laches nor
equitable estoppel are available to the protestant. "As a
general rule, laches or neglect of duty on the part of officers
of the Government is no defense to a suit by it to enforce a
public right or protect a public interest." Utah Power & Light
Co. v. United States, 243 U.S. 389, 37 S. Ct. 387, 61 L. Ed. 791
(1917). In the instant case, the public interest required to be
protected consisted of the revenue of the United States.
Additionally, the Court of Customs and Appeals held that
equitable estoppel is not available against the Government in
cases involving collection or refund of duties on imports. See
Air-Sea Brokers, Inc. v. United States, 596 F. 2d 1088, 66 CCPA
64 (1979).
The protestant claims that there is no federal statute that
expressly states the time within which the United States must
undertake to collect a dumping duty after the cause of action
accrued -- that is, after the entry is made or the dumping
finding is published, whichever is later. Consequently, the
protestant asserts that state law is controlling under such
circumstances and cites to 2 Moore's Federal Practice 3.07[2] for
this proposition. The premise of the protestant's claim is
incorrect. The federal statute which governs the collection of
dumping duties as well as other duties is the Tariff Act of 1930.
At the time in question, under the Tariff Act of 1930, there was
no provision in the statute setting forth a time limit for
liquidation. See Dart Export infra. This, it is a fallacy to
infer that because a federal statute which governs an issue does
not expressly contain a time limit for action to be taken, that
thus no federal statute governs the issue. We note that the Dart
Export case was denied certiorari in the Supreme Court and thus
the issue of time limit for liquidation would appear to be
settled law. Therefore, the protestant's assertion regarding
state law is not relevant in the disposition of the subject
protest.
The protestant raises three issues regarding actions of the
USTC. The protestant states that these were the precise issues
then being litigated in Pasco Terminals, Inc. v. U.S., Court No.
74-5-01357. These issues are whether the USTC failed to follow
its own Rules of Practice and Procedure in its injury
investigation; whether the USTC abused its discretion in denying
cross-examination of crucial evidence in conducting its injury
investigation; and whether the USTC
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failed to consider critical evidence on the operation of the
Tampa sulfur market in its injury determination. The Customs
Court ruled against the protestant in summary judgement on all
three of these issues in 83 Customs Court 65, C.D. 4823 (1979).
Furthermore, all three of these issues involved the injury
determination conducted by the USTC under 19 U.S.C. 160 and 19
CFR Parts 201 and 207 and its Rules of Practice and Procedure,
and not any decision of a customs officer protestable pursuant to
19 U.S.C. 1514(a). Therefore, these injury issues are not
protestable matters under the authority of the Customs Service
pursuant to 19 U.S.C. 1514.
We note that 19 U.S.C. 160 was repealed effective January 1,
1980. Pub. L. 96-39, sect. 106(a) and sect. 107 supra.
Notwithstanding this repeal, the law in effect on the date of any
finding or determination contested in any protest shall be
applied for purposes of that action. Id. at sect. 1002(b)(2).
The determination contested in the subject protest was the
liquidation of the entries in question on February 23, 1979.
Therefore, 19 U.S.C. 160 and the above cited provisions
administered by the USTC were in effect on February 23, 1979, and
would be applicable to the subject protest. As discussed
previously, the issues in these provisions were not protestable
pursuant to 19 U.S.C. 1514 on February 23, 1979. Consequently,
the repeal of 19 U.S.C. 160 does not effect the protestability of
issues under that section and the above cited provisions
administered by the USTC under section 1514.
HOLDING:
The protest is denied. The subject entries were properly
liquidated by Customs on February 23, 1979. The subject entries
did not liquidate by operation of law because the entries were
made prior to the effective date of 19 U.S.C. 1504.
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 the
making of this 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,
Director,
International Trade Compliance Division