414 F.Supp.2d 1317 (CIT. 2006), 03-00856, Hynix Semiconductor America, Inc. v. United States
|Docket Nº:||Court No. 03-00856.|
|Citation:||414 F.Supp.2d 1317|
|Party Name:||HYNIX SEMICONDUCTOR AMERICA, Inc., Plaintiff, v. UNITED STATES, Defendant. No. Slip Op. 06-15.|
|Case Date:||January 26, 2006|
|Court:||Court of International Trade|
Willkie Farr & Gallagher (Miriam A. Bishop) for Plaintiff Hynix Semiconductor America, Inc.
Peter D. Keisler, Assistant Attorney General; Barbara S. Williams, Attorney in Charge, International Trade Field Office; Commercial Litigation Branch, Civil Division, U.S. Department of Justice (James A. Curley), for Defendant United States.
GOLDBERG, Senior Judge.
In this action reviewing a denial of a protest under 19 U.S.C. § 1514, Plaintiff Hynix Semiconductor America, Inc. ("Hynix") moves the court, under USCIT R. 56, to enter summary judgment in its favor, and to order the Defendant U.S. Customs and Border Protection ("Customs") to reliquidate certain entries to correct an error made in liquidating those entries based on incorrect instructions issued by the U.S. Department of Commerce ("Commerce"). Customs also moves for summary judgment, contending that it properly denied Hynix's reliquidation request, and that therefore this Court should dismiss the case. See Defendant's Brief in Opposition to Plaintiff's Motion for Summary Judgment and in Support of Its Cross-Motion for Summary Judgment ("Customs Br.").
The Court concludes that a Commerce employee made a "clerical error" and "mistake of fact" when transferring data from a computer printout into liquidation instructions, after which Customs followed the erroneous instructions and liquidated the goods at an incorrect rate, resulting in an adverse duty rate applied to Hynix's entries. Because such an error was correctable under 19 U.S.C. § 1520(c) as a mistake of fact or clerical error not amounting to an error in the construction of a law, and because the failure to file a protest within ninety days of the liquidation of the entries is without legal consequence in this context, the Court grants Hynix's motion for summary judgment and denies Customs' cross-motion for the same.
This consolidated action 1 concerns 486 entries ("the Entries") of Dynamic Random Access Memory Semiconductors ("DRAMS") manufactured in the Republic of Korea ("Korea") and exported to the United States. The Entries arrived in the Port of San Francisco during a period from May 1, 1998 to April 30, 1999, and were subject to Commerce's sixth administrative review of an antidumping duty order then in place. 2
Commerce, in its sixth administrative review, calculated two types of antidumping rates: (1) a single weighted-average dumping margin for each producer/exporter, which was calculated using all U.S. sales by that producer/exporter, and (2) an importer-specific assessment rate, which was calculated using only U.S. sales by that same producer/exporter to certain specific importers. See Final Results, 65 Fed.Reg. at 68978. Commerce determined that the weighted-average dumping margin for producer/exporter Hyundai Electronics Industries Co., Ltd. ("Hyundai Electronics") was 2.30 percent. Id. Commerce also calculated an importer-specific rate of 1.57 percent for Hyundai Electronics America, Inc. ("Hyundai Electronics America"). 3 See Tr. of Paige Rivas Dep. ("Rivas Dep.") 32-33. The actual importer-specific
rate was not published in the Federal Register, but the Final Results apprised readers of its existence:
The Department shall determine, and the Customs Service shall assess, antidumping duties on all appropriate entries. The Department will issue appraisement instructions directly to the Customs Service. Where the importer-specific assessment rate is above de minimis, we will instruct Customs to assess antidumping duties on that importer's entries of subject merchandise.
These final results of review shall be the basis for the assessment of antidumping duties on entries of merchandise covered by this review. For duty-assessment purposes, we calculated importer-specific assessment rates by aggregating the dumping margins calculated for all U.S. sales to each importer and dividing this amount by the total estimated entered value reported for those sales.
Final Results, 65 Fed.Reg. at 68978.
Both the weighted-average dumping margin for Hyundai Electronics and the importer-specific assessment rate for Hyundai Electronics America were derived from the data compiled during the administrative review, as entered into a specially designed computer program using Statistical Application Software. See Hynix's Statement of Material Facts Not in Dispute ¶ 9 ("Hynix's Statement of Facts"); see also Defendant's Response to Plaintiff's Statement of Material Facts ("Customs' Statement of Facts") ¶ 9 (admitting the same). In Commerce, the computer program is known as the "SAS Program." See Rivas Dep. 15:9-16. The SAS Program produces a computer printout ("SAS Printout") that lists the duty rates for all relevant exporters and producers, as well as the importer-specific rates where appropriate. See Hynix's Statement of Facts ¶ 10. For the sixth administrative review, both the weighted-average dumping margin for Hyundai Electronics and the importer-specific assessment rate for Hyundai Electronics America appeared on the SAS Printout, as well as on the computer display for the SAS Program, but on different pages. See Rivas Dep. 31:14-33:23; see also Hynix's Statement of Facts ¶ 12; Customs' Statement of Facts¶ 12 (admitting the same).
Notwithstanding the routine unfolding of events up to that point, Commerce's liquidation instructions, prepared by Ms. Paige Rivas ("Rivas"), instructed Customs as follows: "For all shipments of DRAMS from Korea Produced by Hyundai, and imported by Hyundai Electronics America, Inc., and entered or withdrawn from warehouse for consumption during the period 05/01/1998 through 04/30/1999, assess an antidumping liability of 2.30 percent of the entered value." Commerce Dep't Message 1260205 (Sept. 17, 2001) (Ex. 2 of Rivas Dep.) (emphasis added). Customs liquidated the Entries at 2.30 percent in a manner consistent with Commerce's instructions, which had erroneously indicated the weighted-average dumping margin instead of the importer-specific rate that (1) was noted in the Final Results, (2) resulted from the SAS Program, and (3) appeared on the SAS Printout.
The erroneous instructions resulted from Rivas' incorrect transfer of data from the SAS Printout to the liquidation instructions she prepared for Customs. See Rivas Dep. 32:7-34:12. Rivas consulted the SAS printout, but failed to notice the importer-specific rate for Hyundai Electronics America. Id. 34:3-9. Indeed, Rivas does not recall if she examined that page at all. Id. 34:10-12. Neither does Rivas recall if she consulted the Final Results published in the Federal Register, which would have referenced the importer-specific rate. Id. 35:9-11.
Some time after Customs liquidated the Entries, Hynix's counsel contacted Rivas
to point out that the liquidation instructions mistakenly directed Customs to assess a 2.30 percent dumping margin for goods imported by a company with an importer-specific rate of 1.57 percent. Id. 17:14-20:17. After that conversation, Rivas reexamined the SAS Printout and determined that the results of the SAS Program contemplated two distinct rates. Id. Rivas was unaware of the distinction between weighted-average dumping margins and importer-specific rates, so she undertook some general research in the dumping manual and other source materials. Id.
After realizing her error, Rivas corrected and replaced the previous liquidation instructions on March 15, 2002. Hynix's Statement of Facts ¶ 26; Customs' Statement of Facts ¶ 26 (admitting the same). The relevant portions of the second set of liquidation instructions provided as follows:
RE: Correction and Replacement of MSG. 1260205 Re Liquidation Instructions For DRAMS from Korea Produced by Hyundai Electronics Industries (A-580-812-02)...
1. This is a correction of Message 1260205 on 09/17/2001. The assessment rate in Paragraph 1 of the above-referenced message is incorrect. The correct message, with the correct assessment rate, is in Paragraph 2.
2. For all shipments of DRAMS from Korea Produced by Hyundai, and imported by Hyundai Electronics America, Inc., and entered or withdrawn from warehouse for consumption during the period 05/01/1998 through 04/30/1999, assess an antidumping liability of 1.57 percent of the entered value.
Commerce Dep't Message 2074203 (Mar. 22, 2002) (Ex. 3 of Rivas Dep.).
After Commerce issued the corrected liquidation instructions, Hynix filed protests under 19 U.S.C. § 1514, importuning Customs (1) to correct the error made in assessing antidumping duties on Hynix, and (2) to apply the correct importer-specific assessment rate as required by the Final Results. See Hynix's Statement of Facts ¶ 27; Customs' Statement of Facts ¶ 28. Customs granted Plaintiff's protests and reliquidated at 1.57 percent any of Hynix's entries whose liquidation date fell within ninety days of the date of protest. 4 See Hynix's Statement of Facts ¶ 28; Customs' Statement of Facts ¶ 28. However, since the Entries were liquidated more than 90 days before the protest, Hynix could not file a protest with respect to the Entries, and filed reliquidation requests under 19 U.S.C. § 1520(c) 5 for the two sets of the Entries on April 22, 2002 and June 27, 2002, respectively. See Hynix's Statement of Facts ¶ 29.
On June 18, 2002 and September 25, 2002, Customs denied those applications on the grounds that no clerical error, mistake of fact or inadvertence occurred on the part of Customs, and therefore relief under 19 U.S.C. § 1520(c) was unavailable. See Customs Br. at 6-7. Hynix filed...
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