U.S. Tsubaki, Inc. v. U.S., Slip Op. 06-148. Court No. 01-00519.
| Decision Date | 10 October 2006 |
| Docket Number | Slip Op. 06-148. Court No. 01-00519. |
| Citation | 461 F.Supp.2d 1339 |
| Parties | U.S. TSUBAKI, INC., Plaintiff, v. UNITED STATES, Defendant. |
| Court | U.S. Court of International Trade |
Barnes, Richardson, & Colburn (Brian Francis Walsh, Christine Henry Martinez, Kazumune V. Kano), Chicago, IL, for Plaintiff U.S. Tsubaki, 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.
This case involves an action to review a denial of protest under 19 U.S.C. § 1515 (2000). Plaintiff U.S. Tsubaki, Inc. ("Tsubaki") moves the court, pursuant to USCIT Rule 56, to enter summary judgment in its favor, and to order the defendant U.S. Customs and Border Protection ("Customs") to reliquidate the entries at issue and refund, with interest, the excess duties paid by Tsubaki. Customs also moves for summary judgment, contending that while five of Tsubaki's entries are deemed liquidated by operation of law, the majority of them are not. See Def.'s Br. Part. Opp'n Pl.'s Mot. Summ. J. 3 ("Def.'s Br.").1
Five of the entries2 are deemed liquidated because Customs waited longer than is permitted under 19 U.S.C. § 1504(d) (Supp. V 1984) to liquidate at the rate determined by the U.S. Department of Commerce's ("Commerce") administrative review. Tsubaki is therefore entitled to a refund of antidumping duties paid on them. However, the Court agrees with Customs that with the exception of these five entries, the entries at issue are not deemed liquidated.
Tsubaki imports roller chain from Japan into the United States. Pl.'s Mot. Mem. Supp. Summ. J. 3 ("Pl.'s Br."). From 1979 to 1983, Tsubaki made fifty-six entries of roller chain through various ports, which were subject to an antidumping duty order. During this time, Commerce held two periods of administrative review: (1) December 1, 1979 through March 31, 1981 ("the first period"); and (2) April 1, 1981 through September 1, 1983 ("the second period"). Liquidation of the entries was suspended pending the final results from the administrative reviews. The results from the first period were published in the Federal Register on December 4, 1986. See Roller Chain, Other Than Bicycle From Japan, 51 Fed.Reg. 43,755 (Dep't of Commerce Dec. 4, 1986) (final admin. review). The weighted average final dumping margin for the roller chain at issue during the first period was 0.07%. There was no cash deposit required for entries from this period of review.
The results from the second period of review were published in the Federal Register on May 8, 1987. See Roller Chain, Other Than Bicycle, From Japan, 52 Fed. Reg. 17,425 (Dep't of Commerce May 8, 1987) (final admin. review). There was no cash deposit required for the merchandise at the time of entry,3 but Commerce subsequently determined that the weighted average dumping margin over the period of review ranged from 0.18% to 0.36%. 52 Fed.Reg. at 17,427.
Commerce issued liquidation instructions to Customs on September 18, 2000 for both the first and second periods of review. Customs then liquidated these entries between October 2000 and February 2001. Thereafter, Tsubaki filed protests under 19 U.S.C. § 1514 claiming that the entries at issue were deemed liquidated by operation of law under 19 U.S.C. § 1504(d). Tsubaki argued that Customs should have liquidated the entries at 0%, as that was the cash deposit rate in effect at the time of entry. The protest was denied, and Tsubaki subsequently commenced this action.
The primary issue before this Court is which version of 19 U.S.C. § 1504(d) applies in this case. In 1978, Congress promulgated its first statute governing "deemed liquidation." Customs Procedural Reform and Simplification Act of 1978, Pub.L. No. 95-410, § 209, 92 Stat. 888, 902-03, 19 U.S.C. § 1504. Congress made minor changes to this statute in 1984.4 Section 1504 generally provides that if merchandise is not liquidated within one year from the date of entry, it is "deemed liquidated" at the rate asserted at the time of entry by the importer. See 19 U.S.C. § 1504(a) (Supp. V 1984). However Court No. 01-00519 Page 5 special rules apply if liquidation has been suspended. From 1984 until 1993, § 1504(d) provided:
(d) Limitation — Any entry of merchandise not liquidated at the expiration of four years from the applicable date specified in subsection (a) of this section, shall be deemed liquidated at the rate of duty, value, quantity, and amount of duty asserted at the time of entry by the importer of record, unless liquidation continues to be suspended as required by statute or court order. When such a suspension of liquidation is removed, the entry shall be liquidated within 90 days therefrom.
Id. § 1504(d) (emphasis added). At first glance it appears that Customs must liquidate an entry within ninety days after suspension of liquidation is removed, but courts have interpreted the ninety-day time limit as directory, not mandatory. See Am. Permac, Inc. v. United States, 191 F.3d 1380, 1382 (Fed.Cir.1999) ()(citing Canadian Fur Trappers Corp. v. United States, 884 F.2d 563, 566 (Fed.Cir.1989)). Because this time limit is discretionary,
[t]he statute had an unfortunate anomaly that made deemed liquidation available for entries for which removal from suspension occurred within the four-year period, but not for entries for which removal from suspension occurred even one day after the four-year time limit. In those circumstances, Customs had an unlimited amount of time in which to liquidate entries.
Koyo Corp. of U.S.A. v. United States, 29 CIT ___, ___, 403 F.Supp.2d 1305, 1308 (2005).
Section 1504(d) was amended by the North American Free Trade Agreement Implementation Act in 1993. See Pub.L. No. 103-182, § 641, 107 Stat. 2057, 2204-05. The 1993 version provides as follows:
(d) Removal of suspension. When a suspension required by statute or court order is removed, the Customs Service shall liquidate the entry within 6 months after receiving notice of the removal from the Department of Commerce, other agency, or a court with jurisdiction over the entry. Any entry not liquidated by the Customs Service within 6 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.
19 U.S.C. § 1504(d) (Supp. V 1993) (emphasis added). Unlike the 1984 version, there is no discretionary ninety-day time limit. The 1993 version provides explicitly that merchandise is "deemed liquidated" at the rate asserted at the time of entry if Customs fails to liquidate an entry within six months after receiving notification that the suspension was removed.
In light of the differences between the 1984 and 1993 versions of § 1504(d), Tsubaki claims that its merchandise entered between 1979 and 1983 should be deemed liquidated as a matter of law because Customs failed to liquidate that merchandise within six months after suspension of liquidation had been removed. Customs disagrees, and asserts that application of the 1993 version in this case would have an impermissible retroactive effect. Instead, Customs argues that the 1984 version's ninety-day discretionary limit should govern. Furthermore, as the 1984 version's four-year time limit applies to only five of the fifty-six entries at issue, the majority of Tsubaki's entries are not deemed liquidated by operation of law.
The Court has exclusive jurisdiction over "any civil action commenced to contest the denial of a protest, in whole or in part, under section 515 of the Tariff Act of 1930." 28 U.S.C. § 1581(a) (2000). This action is timely and jurisdiction is proper under 28 U.S.C. § 1581(a).
This Court reviews protest denials de novo. See 28 U.S.C. § 2640(a)(1) (2000) (); see also Rheem Metalurgica S/A v. United States, 20 CIT 1450, 1456, 951 F.Supp. 241, 246 (1996), aff'd 160 F.3d 1357 (Fed.Cir.1998).
A motion for summary judgment shall be granted if "the pleadings [and discovery materials] show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." USCIT R. 56(c). In ruling on cross-motions for summary judgment, if no genuine issue of material fact exists, the court must determine whether judgment as a matter of law is appropriate for either party. Sea-Land Serv., Inc. v. United States, 23 CIT 679, 684, 69 F.Supp.2d 1371, 1375 (1999). Summary judgment is proper in this case because there are no genuine issues of material fact.
In Landgraf v. USI Film Products, The Supreme Court identified the proper analysis for determining whether a statute should apply if it was enacted after the events giving rise to the lawsuit. 511 U.S. 244, 280, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). A court first must determine whether Congress expressly "prescribed the statute's proper reach." Id. If Congress has not done so, the court must decide whether the statute would "operate retroactively." Id. A statute's application is not retroactive "merely because it is applied in a case arising from conduct antedating the statute's enactment...." Id. at 269, 114 S.Ct. 1483. However, it is retroactive if the new statutory provision "attaches new legal...
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