Travelers Indem. Co. v. U.S., Slip Op. 08-104. Court No. 06-00151.
| Decision Date | 29 September 2008 |
| Docket Number | Slip Op. 08-104. Court No. 06-00151. |
| Parties | TRAVELERS INDEMNITY CO., Plaintiff, v. UNITED STATES, Defendant. |
| Court | U.S. Court of International Trade |
Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, New York, NY (Edward B. Ackerman), Co-Counsel for Plaintiff Travelers Indemnity Co.
Gregory G. Katsas, Assistant Attorney General; Barbara S. Williams, Attorney in Charge, International Trade Field Office, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Amy Rubin): Edward N. Maurer, Deputy Assistant Chief Counsel, International Trade Litigation, U.S. Customs and Border Protection, and William J. Kovatch, Jr., Senior Attorney, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, of Counsel, for Defendant United States.
This case establishes that publication of a case in the Customs Bulletin Weekly ("the Bulletin") is not sufficient notice to the United States Bureau of Customs and Border Protection ("Customs")1 to invoke the deemed liquidation rule of 19 U.S.C. § 1504(d) ("Section 1504(d)"). Plaintiff Travelers Indemnity Company, ("Travelers") has filed a Motion for Summary Judgment claiming Bulletin publication leads to deemed liquidation. Defendant United States has cross-moved. This court exercises jurisdiction pursuant to 28 U.S.C. § 1581(a). Because publication of a case in the Bulletin did not constitute "notice" under Section 1504(d),2 the deemed liquidation rule of Section 1504(d) does not apply. Accordingly, Plaintiff's Motion for Summary Judgment is denied and Defendant's Cross-Motion for Summary Judgment is Granted.
On December 29, 1986, the United States Department of Commerce ("Commerce") published the final results of the first administrative review of imports from producers of certain Taiwanese color television receivers "CTVs" that entered the United States between October 19, 1983, and March 31, 1985. See Color Television Receivers, Except for Video Monitors. From Taiwan; Final Results of Antidumping Duty Admin. Review, 51 Fed. Reg. 46895 (December 29, 1986) ("the 1983-1985 Review"); Plaintiff's Brief in Support of Its Motion for Summary Judgment ("Plaintiff's Motion") at 2. One of the Taiwanese producers that participated in the initial review was AOC International ("AOC"). Plaintiff's Motion at 2. In the 1983-1985 Review, Commerce established a cash deposit rate of 1.38% for CTVs that AOC exported to the United States and that had entered American customs territory after December 29, 1986. Id. Between November 1987 and March 1988, a company called Funai USA imported 17 entries of AOC-manufactured CTVs into the United States and paid cash deposit of 1.38% ad valorem antidumping duties on the 17 entries. Id.
On December 16, 1991, Commerce published the final results of a subsequent administrative review of CTVs exported by various Taiwanese producers for the period April 1, 1987 through March 31, 1988. See Color Television Receivers, Except for Video Monitors. From Taiwan; Final Results of Antidumping Duty Admin. Review, 56 Fed.Reg. 65218 (December 16, 1991) ("the 1987-1988 Review"). The 1987-1988 Review results covered the 17 Funai USA entries at issue. See id.; Plaintiff's Motion at 3. Commerce imposed an antidumping duty margin of 7.43% for the 17 Funai USA entries from the 1987-1988 Review period. Plaintiff's Motion at 3. Upon notification of the results of the 1987-1988 Review, AOC appealed Commerce's final results. Id. While the appeal to this court was pending, liquidation remained suspended on the 17 Funai USA entries pursuant to a preliminary injunction under 19 U.S.C. § 1516a(c)(2). This court affirmed both Commerce's original determination and the remand determination decision. Zenith Elecs. Corp. v. United States, 18 CIT 1105 (1994), appeal after remand. 19 CIT 602 (1995). AOC appealed that affirmation to the Court of Appeals for the Federal Circuit ("Federal Circuit"). See Zenith Elecs. Corp., v. United States, 99 F.3d 1576 (Fed.Cir.1996),("Zenith II").3
The Federal Circuit affirmed and held that Commerce had correctly calculated the antidumping duty margin in the 1987-1988 Review. Id. at 1579. Zenith II was issued by the Federal Circuit on November 7, 1996, but a petition for rehearing with a suggestion for rehearing en banc was filed. Id. at 1576; Defendant's Memorandum in Opposition to Plaintiff's Motion for Summary Judgment and In Support of Cross-Motion for Summary Judgment, ("Defendant's Response and Cross-Motion") at 3. The petition was denied in an unpublished order on February 26, 1997. Defendant's Response and Cross-Motion at 3. The time for petitioning for a writ of certiorari expired on May 27, 1997, without a petition being filed. Id. At that point, Zenith II became final, and suspension of the liquidation was removed. Defendant's Response and Cross Motion at 3; See Fujitsu Gen. Am., Inc. v. United States, 283 F.3d 1364 (Fed.Cir.2002).
In Zenith II the Federal Circuit determined that substantial evidence supported the final results of Commerce's 1987-1998 Review. Zenith II 99 F.3d at 1577; Defendant's Response and Cross Motion at 3. On October 22, 1997, after the Federal Circuit had rejected AOC's cause of action in Zenith II, Customs published the Zenith II decision in its Bulletin publication. Plaintiff's Motion, Exhibit 4.
On March 18, 2005, Customs liquidated the 17 Funai USA entries, in accordance with electronic message No. 5035206 which was issued by Commerce on February 4, 2005. Id. Customs assessed the increased antidumping duties at the 7.43% rate, plus interest, for a total bill of $615,767.17. Defendant's Response and Cross-Motion at 4. The figure equaled the difference between the cash deposit calculated using the entered rate of 1.38% and the higher final rate of 7.43%, plus accrued interest. Plaintiff's Motion at 5; id. Customs sent the bills to Funai USA's business address in Tetersboro, New Jersey, but upon learning that Funai USA had dissolved, Customs issued a demand upon Funai USA's surety, Travelers. Plaintiff's Motion at 5. Defendant's Response and Cross Motion at 4. Travelers timely filed a protest on September 12, 2005 and the protest was denied on November 10, 2005. Defendant's Response and Cross Motion at 4. On May 8, 2006, Travelers paid $90,000 to Customs, which was the limit of its liability as surety on Funai USA's bond. Plaintiff's Motion at 6.
Travelers claims that the October 22, 1997 publication of Zenith II in the Bulletin constituted notice to Customs of removal of suspension of the 17 Funai USA entries of CTVs. Plaintiff's Motion at 5. Additionally, Travelers asserts the 17 Funai USA entries were deemed liquidated on April 22, 1998, (six months after the publication of the Zenith II decision in the Bulletin) using an antidumping rate of 1.38%. Id. at 5-6. Customs disagrees. Both parties have moved for summary judgment and maintain that there are no genuine issues of material fact to be resolved by a trial on the merits. Plaintiff's Motion at 1-2, 6; Defendant's Reply and Cross-Motion at 4. The sole issue is whether Customs received notice of the liquidation suspension removal for purposes of Section 1504(d) more than six months before it liquidated the entries at issue. See Plaintiff's Motion at 1-2, 6; Defendant's Response and Cross-Motion at 6.
Summary judgment is appropriate if the court determines that "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there are no genuine issues as to any material fact, and that the moving party is entitled to a judgment as a matter of law." USCIT R.56 (d); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Under 28 U.S.C. § 2640(a)(1), this court reviews de novo the denial of an administrative protest under 19 U.S.C. § 1515.
Travelers bases its entire case upon application of the "deemed liquidation" doctrine. Section 1504(d) provides that when a suspension of liquidation required by statute or court order is removed, Customs shall liquidate the entry within six months after receiving notice of the removal from Commerce, another agency or a court with jurisdiction over the entry. Section 1504(d). Any entry not liquidated by Customs within six 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. Id. Because Section 1504(d) provides that an entry will be deemed liquidated by operation of law if Customs does not liquidate the entry within six months of receiving notice, it is "critical to determine ... what constitutes notice of the removal [of liquidation] suspension to Customs." Int'l Trading Co. v. United States, 281 F.3d 1268, 1271 (Fed.Cir.2002).
For deemed liquidation to occur: "(1) the suspension of liquidation that was in place must have been removed; (2) Customs must have received notice of the removal of the suspension; and (3) Customs must not liquidate the entry at issue within six months of receiving such notice." Fujitsu, 283 F.3d at 1376. The notice Customs must receive to remove suspension is the central issue here. The Federal Circuit has held that specific liquidation instructions from Commerce via email or mailed notice, and publishing notice of a decision in the Federal Register are adequate forms of "notice" under Section 1504(d). NEC Solutions (Am.), Inc. v. United States, 411 F.3d 1340, 1347 (Fed. Cir.2005); Fujitsu, 283 F.3d 1364 at 1382; Int'l Trading, 281 F.3d at 1275. These methods of notice are acceptable, but the...
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