HQ 229696

March 14, 2003

LIQ-4-01: RR:CR:DR

229696 RDJ

Ms. Maria Palmer, Area Port Director

US Customs Service

#1 La Puntilla St.

Old San Juan, P.R. 00901

Attn: Mr. Rafael Cuevas, Acting SIS

RE: Protest No. 4909-02-100055; Celta Agencies, Inc.

19 U.S.C. 1504(d), deemed liquidation; 19 USC 1673(a)(3)(B)

Dear Mr. Cuevas:

The above-referenced Protest was submitted by Celta Agencies ("Celta")
and forwarded for our review and determination. Our decision follows.

**[FACTS:]{.underline}**

This protest relates to the assessment of antidumping duties assessed on
entry number 508-XXXX718-9 entered by Celta Agencies on May 12, 1999 at
the Port of San Juan, Puerto Rico.

At the time of entry (CF7501), Celta described the subject merchandise
as a "re-bar, concrete re-enforcing bar and rods" classified under
subheading 7214.20.000, HTSUS. Celta identified the manufacturer as
Colakoglu Metalurgi, A.S. from Turkey. The entered value was about
1,4XX,XXX.00. On the CF7501, Celta identified the antidumping case \#
A489-807--001 with a declared ad valorem weighted-average dumping margin
of 9.84% for producer/manufacturer Colakoglu Metalurgi, A.S.

The subject antidumping case was initiated in April 17, 1997 when the
Department of Commerce ("Commerce") published in the Federal Register
(62 F.R. 18748 (1997)) a notice titled: [Antidumping Duty Order: Certain
Steel Concrete Reinforcing Bars From Turkey]{.underline} . It stated
that Customs officers must require a cash deposit equal to the estimated
weighted-average antidumping duty margin as noted below:

  -------------------------------------------------------- ----------------
                                                           

  **Producer/manufacturer/exporter**                       **Margin**

                                                           **Percentage**

                                                           

  Colakoglu Metalurji A.S. or Colakoglu Dis                9.84

  Ticaret (Colakoglu                                       
  -------------------------------------------------------- ----------------

On June 2, 2000, Commerce published 65 F.R.35320 (2000): [Initiation of
Antidumping and Countervailing Duty Administrative Reviews]{.underline}.
It announced the initiation of administrative reviews for various
antidumping/countervailing orders including A-489-807 *Turkey: Certain
Steel Concrete Reinforcing Bars entered within the period of April 1,
1999, through March 31, 2000, A-489-807 ( Colakoglu Metalurji
A.S./Colakoglu Dis Ticaret).*

On May 4, 2000, Commerce published in 66 F.R. 22525 (2000), the
[preliminary results]{.underline} of the administrative review for the
period April 1, 1999, through March 31, 2000. The margin percentage for
Colakoglu Metalurji, A.S. was determined to be 10.47 %.

On November 7, 2001, Commerce published the [final results]{.underline}
of the review for the stated period (66 F. R. 56274 (2001)), [Certain
Steel Concrete Reinforcing Bars From Turkey; Final Results of
Antidumping Duty Administrative Review .]{.underline} The final
weighted-average dumping margins for the reviewed firms are listed
below:

  ------------------------------------------------------------ -------------
                                                               

  **Manufacturer/exporter**                                    **Percent**

                                                               

                                                               

  Colakoglu Metalurji A.S.                                     9.51

  Ekinciler Holding A.S./Ekinciler Demir Celik A.S.            6.83
  ------------------------------------------------------------ -------------

The final notice went on to state that the Department of Commerce
*"shall determine and Customs shall assess, antidumping duties on all
appropriate entries....Regarding Colakoglu, for assessment purposes, we
do not have the information to calculate entered value because these
companies are not the importers of record for the subject merchandise.
Accordingly, we have calculated importer specific duty assessment rates
for the merchandise in question by aggregating the dumping margins
calculated for all US sales to each importer and dividing this amount by
the total quantity of those sales. The assessment rate will be assessed
uniformly on all entries of that particular importer made during the POR
\[period of review\]. Pursuant to 19 CFR 351.106(c)(2), we will instruct
the Customs Service to liquidate without regard of antidumping duties
any entries for which the assessment rate is de minimis (i.e. less than
0.50 percent)".*

On December 6, 2001, Commerce published 66 F. R. 63364 (2001) [Certain
Steel Concrete Reinforcing Bars From Turkey; Amended Final Results of
Antidumping Duty Administrative Review.]{.underline} It amended the
final results on 66 F. R. 56274 (2001). It specifically amended the
final margin for another company by the name of Ekinciler. The
amendments did not pertain Colakoglu Metalurji, A.S.\
\
On January 3, 2002, Commerce issued Message No. 2003203. It notified
Customs of the liquidation instructions for antidumping case \#
A-489-807 for the period covering April 1, 1999 to March 31, 2000. It
stated:

> RE: LIQUIDATION INSTRUCTIONS FOR STEEL CONCRETE REBARS FROM TURKEY
> PRODUCED BY COLAKOGLU METALURJI, S.A. (A-489-807-001)

1.  FOR ALL SHIPMENTS OF CERTAIN STEEL CONCRETE

> REINFORCING BARS FROM TURKEY (A-489-807-001) PRODUCED BY COLAKOGLU
> METALURJI,A.S. AND IMPORTED BY THE FOLLOWING COMPANIES (AS SHOWN ON
> THE COMMERCIAL
>
> OR CUSTOMS DOCUMENT), AND ENTERED OR WITHDRAWN
>
> FROM WAREHOUSE FOR CONSUMPTION DURING THE PERIOD OF 04/01/1999 THROUGH
> 03/31/2000, ASSESS ANTIDUMPING LIABILITIES (PER METRIC TON) AS
> FOLLOWS:
>
> IMPORTER:
>
> RATE (PER METRIC TON)
>
> VOEST ALPINE INTETRADING..................20.86
>
> CELTA AGENCIES ..................39.02
>
> MACSTEEL INTERNATIONAL US CORP.......2.29
>
> MANNESMANN PIPE AND STEEL CORP......12.80

2.  THESE INSTRUCTIONS CONSTITUTE THE IMMEDIATE LIFTING

> OF SUSPENSION OF LIQUIDATION OF ENTRIES FOR THE MERCHANDISE
>
> LISTED ABOVE.

Based on this message, the Port liquidated entry \# 508-XXXX718-9 on May
31, 2002 with antidumping duties assessed at the rate of 39.02 per
metric ton.

On August 22, 2002, Celta filed a protest to this liquidation. Celta
argued that the subject entry deemed liquidated by operation of law
under the provisions of 19 U.S.C. 1504(d) because the liquidation
occurred more than 6 months after the expiration of the statutory
6-month period established by section 1504(d). Celta argued that the
six-month period for liquidation closed on May 7, 2002, that is, 6
months after Commerce published in the Federal Register (66 F R. 56274
(2001)) the final results of the administrative review under [Certain
Steel Concrete Reinforcing Bars From Turkey; Final Results of
Antidumping Duty Administrative Review]{.underline}. Celta stated that
the entry deemed liquidated at the rate of duty applicable at the time
of entry and requested that any excess AD duties paid be refunded
including interest.

The Port's position is that the liquidation occurred within 6 months
from the date (January 3, 2002) of the Administrative Message No.
2003203 which specifically instructed Customs to lift the suspension on
the affected entry.

**[ISSUE:]{.underline}**

Did the subject entry deem liquidate by operation of law under 19 U.S.C.
1504(d)?

**[LAW & ANALYSIS:]{.underline}**

Initially, we note that the protest was timely filed under the statutory
provisions for protests, 19 U.S.C. 1514 and 19 C.F.R. 174. The entry
liquidated on May 31, 2002.

The subject protest was filed by Celta Agencies on August 22, 2002
within the 90-day statutory period provided by section 1514. We review
this case under the provisions of section 1514(a)(5) involving the
liquidation and reliquidation of an entry, or reconciliation as to the
issues contained therein or any modification thereof.

Generally, antidumping duty rates correctly applied by Customs are not
protestable. However, an importer may protest under section 1514, an
alleged failure by Customs

to follow an instruction as issued by the Department of Commerce. The
role of Customs in the antidumping process is "simply to follow
Commerce's instructions in collecting deposits of estimated duties and
in assessing antidumping duties...at the time of liquidation (see,
[Fujitsu Ten Corporation of America v. United States]{.underline} 21
C.I.T. 104; 957 F. Supp. 245 (1997) and [Mitsubishi Electronics America
Inc. v U.S.,]{.underline} 44 F. 3d 973 (Fed. Cir. 1994) and [American
Hi-Fi International, Inc. v U.S.]{.underline} 19 C.I.T. 1340 (1995). In
cases where the scope of the antidumping duty order is unambiguous and
undisputed, and the goods clearly do not fall within the scope of the
order, misapplication of the order by Customs is properly the subject of
a protest under 19 U.S.C. 1514 ( [Xerox Corp v US]{.underline} 289 F. 3d
792 (Fed Cir. 2002), reversing [Xerox Corp.]{.underline} 188 F. Supp. 2d
1353, Ct. Int'l Trade (October 19, 2000). In this case, Celta is not
protesting the scope of an antidumping order, it is merely alleging that
the application of the order by Customs is illegal since the entry
liquidated by operation law under 19 U.S.C. 1504(d).

The issue is whether the entry should be liquidated for antidumping
duties in accordance to Commerce's instructions issued to Customs on
Message No. 2003203 dated January 3, 2002 or, as the protestant
contends, consider the entry "deemed liquidated" by operation of law at
the rate and amount of duty asserted at the time of entry.

In [International Trading]{.underline} [Co. v. U.S]{.underline}. (281
F.3d 1268 (Fed Cir. 2002), reh'g denied (April 24, 2002)) the Federal
Circuit interpreted the liquidation requirements as modified by the
Customs Modernization Act of 1993. At the time of entry, the following
version of 19 U.S.C. 1504(d) (Supp.V 1993) governed:

"The Customs Service shall liquidate the entry...within 6 months after
receiving

notice 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).

Between March 1993 and February 1994, International Trading imported
towels from Bangladesh. At the time of entry, the towels were subject to
antidumping duties at a rate of 2.72 %. In April, 1994 Commerce
published a notice on the Federal Register announcing that it would
conduct an administrative review of the period covering March 1, 1993 to
February 28, 1994. On February 12, 1996, Commerce published the final
results in the Federal Register and announced an antidumping rate of
42.31% for the company in Bangladesh. This notice advised Customs not to
liquidate any entries until further notice. On August 26, 1996, Commerce
sent a "non-public" message to Customs and directed Customs to liquidate
and assess antidumping duties at 42.31% on the affected entries. Customs
liquidated the entries on October 30, 1996 at a rate of 42.31%. ITC
filed a protest and claimed that the entries deemed liquidated by
operation of law at the rate asserted at the time of entry (2.72%), that
is, because Customs did not liquidate within 6 months after receiving
notice of the removal of suspension of liquidation. International
Trading argued that the removal of the suspension occurred upon the
publication of the final results of the administrative review in the
Federal Register. The Court found that the six-month liquidation period
under the Customs Modernization Act began with Commerce's publication in
the Federal Register of the notice of the final results of
administrative review. In the Celta case, November 7, 1997 is the date
that Commerce published the final results in the Federal Register of the
review for the period covered in the entry . As stated above, Commerce
notified Customs of the liquidation instructions on January 3, 2002.

There have been relevant statutory changes to section 1504(d) which need
to be considered. In [International Trading]{.underline}, the amendments
to section 1504(d) were not analyzed since the entries concerned the
pre-1994 version of 1504(d). The present version of 1504(d) makes, the
outcome which resulted in the [International Trading]{.underline} case,
inapplicable to the facts of the present protest.

The Uruguay Round Agreements Act ("URAA"), which was passed in 1994,
amended 19 U.S.C. 1675(a)(3) by requiring the liquidation for
antidumping and countervailing duties based on Commerce's final results
of administrative review "within 90 days after the instructions to
Customs are issued". In the same legislation, Congress amended section
1504(d) to read:

Except as provided in section 1675(a)(3) of this title[,]{.underline}
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 removal from the Department of

Commerce...Any entry not liquidated by the Customs Service within 6
months

after receiving such notice shall be treated as shaving 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 USC 1504(d) as amended in 1994).

The changes made to section 1504(d), as mandated by the URAA, are to be
applied in resolving the liquidation issue on this case. These changes
indicate an intent to create an *exception* for countervailing and
antidumping entries. Section 1504(d) cross-references to section
1675(a)(3) and it is this section which provides for the liquidation of
entries subject to antidumping or countervailing duties administrative
reviews. Because the entry in issue was subject to an administrative
review, the liquidation provisions of 1675(a)(3)(B) apply to Celta's
case. The provision in 19 U.S.C. 1675(a)(3)(B) states:

> Liquidation of entries. If the administering authority orders any
> liquidation of
>
> entries pursuant to a review under paragraph (1), such liquidation
> shall be made
>
> promptly and, to the greatest extent practicable, within 90 days after
> the instructions
>
> to Customs are issued. In any case in which liquidation has not
> occurred within that
>
> 90-day period, the Secretary of the Treasury shall, upon the request
> of the affected
>
> party, provide an explanation thereof.

The "except" clause in 1504(d), as amended in 1994 incorporates section
1675(a)(3) by reference. By means of 1675(a)(3)(B), if Commerce orders
liquidation, the liquidation "shall be made promptly and to the greatest
extent practicable, within 90 days after the instructions to Customs are
issued". Entries subject to section 1675(a)(3)(B) are excluded from
coverage of section 1504 by substituting the liquidation requirements of
subsection B for those of section 1504(d). If Customs does not liquidate
the entries within that 90-day period, the statute gives the affected
party the right to invoke a special remedy (i.e. the right to obtain an
explanation for the delay). We find that the language contained in the
"*except as provided*", is an indication that Congress intended section
1675(a)(3) to operate distinctively in the liquidation of countervailing
and antidumping administrative reviews ("A change in the language of a
statute is generally construed to import a change in meaning" ([Bausch
and Lomb Inc. v U.S.]{.underline} 148 F. 3^rd^ 1363, 1367 (Fed Cir.
1998)).

Since section 1675(a)(3)(B) provides a specific liquidation of 90 days
after the instructions to Customs are issued, the time period under
1504(d) would not apply. Even if, section 1504(d) were to apply, the
provisions of 1675(a)(3)(B) could not be ignored. In such case and, in
conformance to section 1675(a)(3)(B), the time to liquidate would
commence at the time when Commerce issues liquidation instructions to
Customs that the suspension on affected entries was removed.

On April 17, 1997, Commerce issued the antidumping order in the Federal
Register [Antidumping Duty Order: Certain Steel Concrete Reinforcing
Bars from Turkey]{.underline} (62 Fed Reg. 18748). It stated that the ad
valorem weighted average dumping margins for Colakoglu Metalurji A.S.or
Colakoglu Dis Ticaret (Colakoglu) was 9.84 margin percentage. Upon
entry, on May 12, 1999, Celta declared that the merchandise was subject
to antidumping case \# A 489-807 and made a deposit of antidumping
duties in the rate of 9.84 percent margin. On June 2, 2000, Commerce
announced the initiation of the administrative review for the period
covering entries made between April 1, 1999 and March 31, 2000. On
November 7, 2001, the final results of the stated review were published
in 66 Fed. Reg.56274. It said that for the stated period of review, the
weighted- average margin percentage for Colakoglu Metalurji A.S. was
9.51 percent margin. On December 6, 2001, Commerce published an
amendment in 66 Fed Reg. 63364 correcting an error in the margin
calculation for another Turkish company, Ekinciler. The amendment had no
relation to the margins established for Colakoglu. On January 3, 2002,
Commerce issued Message No. 2003203 to Customs announcing the
liquidation instruction for antidumping case #A-489-807 for the period
covering April 1, 1999 to March 31, 2000. In accordance to the amended
version of 1504(d), which is conditioned by 1675(a)(3)(B), the
liquidation must take place within 90 days after the instructions to
Customs are issued. On May 31, 2002 the Port liquidated the subject
entry with antidumping duties assessed at 39.02 rate (per metric ton).
We hold that the liquidation occurred timely, as established by section
1504(d) and 1675(a)(3).

[**HOLDING**\
]{.underline}\
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, you are to
mail this decision, together with Customs Form 19 to the protestant no
later than sixty (60) days from the date of this letter. Any
reliquidation of the entry or entries in accordance with this decision
must be accomplished prior to mailing of the decision. Sixty (60) days
from the date of the decision the Office of Regulations and Rulings will
make this decision available to Customs personnel and to the public on
the Customs Home Page on the World Wide Web at
[www.customs.ustreas.gov](http://www.customs.ustreas.gov/), the Freedom
of Information Act and other public access channels.

Sincerely,

> Myles Harmon, Acting Director
>
> Commercial Rulings Division