HQ 229413

May 13, 2002

LIQ-4-01 RR:CR:DR 229413 LLB

Category: Protests/Liquidation

U.S. Customs Service

301 East Ocean Boulevard

Long Beach, CA 90802

Attn: Gerald E. Rankin

Re: Protest No. 2704-01-101203; Application for Further Review; 19
U.S.C. § 1514; HQ 225382 (July 3, 1995); [Mitsubishi Electronic America
Inc. v. United States]{.underline}, 44 F.3d 973 (Fed. Cir. 1994); [ABC
International Traders, Inc. v. United States]{.underline}, 19 CIT 787,
791 (1995); [American Hi-Fi International, Inc. v. United
States]{.underline}, 936 F. Supp. 1032, 1037(Ct. Int'l Trade 1996); HQ
226285 (October 10, 1997); HQ 227653 (October 31, 1997)

Dear Mr. Rankin:

The above-referenced protest has been forwarded to this office for
further review. We have considered the points raised by the protestant
and your office. Our decision follows.

**FACTS**

The subject protest covers 91 entries of television receivers made
between August 17, 1983 and February 27, 1985. According to the
protestant, the subject merchandise was manufactured in Japan by NEC
Home Electronics, Ltd. and imported by North America Philips Consumer
Electronics (hereinafter "NAP"). The foregoing merchandise was the
subject of an anti-dumping order issued by the Department of Treasury,
U.S. Customs Service. 36 Fed. Reg. 4597 (March 10, 1971); T.D.
71-76.[^1] According to the two representative entries submitted,
antidumping duties were not deposited at the time of entry.

In 1986, liquidation of the entries continued to be suspended[^2] as
Commerce initiated a review of television receivers for the period of
April 1983 through February 1985. 51 Fed. Reg. 24883 (July 9, 1986). The
final results found

the subject merchandise to have a net subsidy rate of 18.21% for the
period of April 1, 1983 through March 31, 1984 and 7.37% for the period
of April 1, 1984 through February 28, 1985. 54 Fed. Reg. 35517 (August
28, 1989). The protestant appealed Commerce's final determination, which
the Court of International Trade (CIT) denied. [NEC Home Electronics,
Ltd. v. United States]{.underline}, 18 C.I.T. 336(1994). The Federal
Circuit, vacated the CIT's decision, in part, and remanded the case with
instructions to the CIT to remand the case to Commerce for further
proceedings. [NEC Home Electronics, Ltd. v. United States]{.underline},
54 F.3d 736 (Fed. Cir. 1995).[^3] Accordingly, the CIT remanded the case
to Commerce for a final redetermination of the dumping margins. [NEC
Home Electronics, Ltd. v. United States]{.underline}, 3 F. Supp. 2d 1451
(Ct. Int'l Trade 1998). The CIT sustained Commerce's final
redetermination, which found the net subsidy rate to be 2.20% for the
period of April 1, 1983 through March 31, 1984, and 1.75% for the period
of April 1, 1984 through February 28, 1985. [NEC Home Electronics, Ltd.
v. United States]{.underline}, 59 F. Supp. 2d 1337-38 (Fed. Cir. 1999).

On January 10, 2001, Commerce issued liquidation instructions to Customs
for the subject merchandise entered between April 1, 1983 and March 31,
1984 and April 1, 1984 and March 31, 1985. [^4] The instructions
directed Customs to liquidate NAP's imports for the foregoing periods at
\$27.68 and \$18.33 per unit, respectively. Accordingly, on February 2,
2001, Customs liquidated the entries at the foregoing rates.

On May 2, 2001, the protestant filed its protest and application for
further review arguing 1) that it is not liable for interest because no
cash deposit was required at the time of entry and there was no
effective antidumping order at the time of entry; 2) even if the
assessment of interest was appropriate, it should not have been
compounded; 3) the entries deemed liquidated because Commerce delayed
issuing instructions to Customs; and 4) that assessment of antidumping
duties on a per unit basis violated the CIT's final order. We note that
the protest is timely insofar as it was filed within 90 days of the
February 2, and 9, 2001, liquidation dates. 19 U.S.C. § 1514(c)(3).
Insofar as the first three issues are addressed in [Fujitsu General
America, Inc. et. al v. United States]{.underline}, 110 F. Supp. 2d
1061(Ct. Int'l Trade 2000), [appeal]{.underline} [argued]{.underline},
No. 01-1042 (Fed. Cir. October 4, 2001), it is the last argument for
which your office requests further review.

**ISSUE**

Whether the issue presented is protestable

**LAW AND ANALYSIS**

The protestant argues that "assessment of antidumping duty based on a
per unit basis violates the CIT's final order." Generally, we have held
that the role of Customs in the antidumping process is "\[s\]imply to
follow Commerce's instructions in collecting deposits of estimated
duties and in assessing antidumping duties, together with interest, at
the time of liquidation." HQ 225382 (July 3, 1995); [Mitsubishi
Electronic America Inc. v. United States]{.underline}, 44 F.3d 973 (Fed.
Cir. 1994). However, if Customs fails to follow the instructions of the
Department of Commerce, that failure may be subject to protest under 19
U.S.C. §1514. [See]{.underline}, [e.g.]{.underline}, [ABC International
Traders, Inc. v. United States]{.underline}, 19 CIT 787, 791 (1995)(
"\... \[c\]laims \[that Customs erroneously liquidated certain entries
and failed to follow Commerce's liquidation instructions\] may be
brought before the court under 28 U.S.C. §1581(a)(1988), after denial of
protests by Customs."); [see]{.underline} [also]{.underline}, [American
Hi-Fi International, Inc. v. United States]{.underline}, 936 F. Supp.
1032, 1037 (Ct. Int'l Trade 1996)(\[j\]urisdiction for actions
challenging Customs' failure to follow Commerce's actual liquidation
instructions \... is found under 28 U.S.C. §1581(a).").

In the instant case, there is no allegation that Customs failed to
follow Commerce's liquidation instructions. Instead the protestant
challenges the actual instructions insofar as they instruct Customs to
liquidate the entries on a per unit basis rather than the percentage
rates established by the CIT. Based on the foregoing precedent, this
issue is not protestable under 19 U.S.C. §1514. [See]{.underline} HQ
226285 (October 10, 1997)(holding that protestant's arguments addressing
the assessment of double antidumping duties and penalties were not
protestable inasmuch as they challenged the liquidation instructions,
not Customs failure to follow the instructions); [see]{.underline}
[also]{.underline}, HQ 227653 (October 31, 1997)(challenge to Commerce's
decision to suspend liquidation, not Customs' failure to follow
instructions). Therefore, the subject protest should be denied.

**HOLDING**

Inasmuch as the protestant challenges the actual liquidation
instruction, not Customs failure to follow the instruction, the
protestant has not presented a protestable issue under 19 U.S.C. §
1514(a). The subject protest should be DENIED.

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

[^1]: Administration of the antidumping laws was not transferred to the
    Department of Commerce until 1979. [See]{.underline} [The Trade
    Agreements Act of 1979]{.underline}, Pub. L. No. 96-39, § 101, 93
    Stat. 144, 169-70 (1979).

[^2]: According to the Automated Commercial System (ACS) records, each
    of the entries were suspended within two months after they were
    filed.

[^3]: On January 23, 1997, Commerce issued instructions to Customs,
    pursuant to a preliminary injunction issued by the CIT, to suspend
    liquidation of entries made between April 1, 1983 and February 28,
    1987.

[^4]: On March 26, 2001, Commerce issued a correction to Customs
    indicating the latter period as April 1, 1984 through February 28,
    1985.