HQ 230074

March 9, 2004

LIQ-4-02; LIQ-11 RR:CR:DR

230074 LLB

Category: Liquidation

Bureau of Customs and Border Protection

2350 North Sam Houston Parkway East, Suite 100

Attn: Jeffrey Mitchell

Houston, TX 77032

Re: Protest/AFR No. 5301-03-100259; 19 U.S.C. § 1401a(b)(3)(B); HQ
225382 (July 3, 1995); [Mitsubishi Electronic America, Inc. v. United
States]{.underline}, 44 F.3d 973 (Fed. Cir. 1994); [United States v.
Utex International, Inc.]{.underline}, 857 F.2d 1408 (Fed. Cir. 1988);
HQ 221591(Feb. 13, 1990); HQ 223139(Aug. 29, 1991).

Dear Mr. Mitchell:

The above-referenced protest was forwarded to this office for further
review. We have considered the arguments raised by the protestant, Sidex
Trading SRL Galati, as well as your office. Our decision follows.

**FACTS**

The subject protest covers an entry of hot-rolled carbon steel sheets in
coils made on July 31, 2002. According to the entry documentation, the
merchandise was exported and imported by Sidex Trading SRL Galati
(Sidex), a Romanian company. At the time of entry, hot-rolled carbon
steel sheet from Romania was the subject of an antidumping duty order.
*[See]{.underline}* *Notice of Amended Final Antidumping Duty
Determination and Antidumping Duty Order: Certain Hot-Rolled Carbon
Steel Flat Products from Romania*, 66 Fed. Reg. 5966 (Nov. 29, 2001).
The order stated that the weighted-average margin for Sidex was 16.34%.
According to the CF-7501, the protestant paid a cash deposit on the
merchandise.

According to the sales invoice submitted with the entry Voest Alpine
Intertrading AG (Voest AG), purchased the merchandise from the Sidex
pursuant to contract no. 27304 dated May 16, 2003. The merchandise was
shipped from Romania to the ultimate consignee, Voest Alpine
Intertrading USA, Inc., a subsidiary of Voest AG. The commercial invoice
did not identify antidumping duties. According to the 7501, the sales
invoice, and handwritten notes, the protestant calculated the entered
value of the merchandise by taking the Delivered Duty Paid (DDP) value
from the sales invoice, and subtracting freight, CBP duty, antidumping
duties, user and harbor maintenance fees.

On November 20, 2002, Commerce issued liquidation instructions to The
Bureau of Customs and Border Protection (CBP). The instructions informed
CBP that it had not received a request for administrative review on
certain hot-rolled carbon steel flat products from Romania (A-485-806).
CBP was directed to "liquidate all entries for all firms" for the period
of September 1, 2001 through August 31, 2002 at the cash deposit or
bonding rate in effect at the time of entry with interest. The
instructions further stated that the instructions constituted the
immediate lifting of suspension of liquidation of the entries and
merchandise for the periods listed therein. The instructions stated that
there was no limitation on the release of this information

However, subsequently, on December 26, 2002, Commerce initiated a review
of hot-rolled carbon steel flat products entered between May 3, 2001 and
October 31, 2002. [See]{.underline} *Initiation of Antidumping and
Countervailing Duty Administrative Review*, 67 Fed. Reg. 78772 (Dec. 26,
2002). CBP did not have notice of the foregoing. The administrative
review was rescinded on February 6, 2003. *Certain Hot-Rolled Carbon
Steel Flat Products from Romania: Notice of Rescission of Antidumping
Duty Administrative Review*, 68 Fed. Reg. 6114 (Feb. 6, 2003). As noted
below, CBP did not get notice of the rescission until July 17, 2003.

On March 21, 2003, CBP liquidated the entry. The merchandise was
appraised under transaction value and the antidumping duties were
included in the entered value. Pursuant to Commerce's November 20, 2002,
instructions, CBP liquidated the entry.

After CBP liquidated the subject entry, on April 3, 2003, Commerce
issued instructions to CBP directing it to liquidate all entries of
hot-rolled carbon steel flat products made between May 3, 2001 and
October 31, 2002, for all firms except, [inter]{.underline}
[alia]{.underline}, Sidex Trading SRL/Sidex International. Further, the
instructions stated that entries of merchandise from the excepted firms
should not be liquidated until receipt of specific instructions and that
liquidation of the merchandise should continue to be suspended.

On July 17, 2003, Commerce issued instructions informing CBP that the
administrative review on hot-rolled carbon steel products from Romania
for the period of May 3, 2001 through October 31, 2002 was rescinded on
February 6, 2003. The instructions further stated that CBP should
liquidate all of the subject merchandise for all firms for the foregoing
review period at the cash deposit rate or bonding rate required at the
time of entry, with interest. Although the foregoing instruction was
consistent with the November 20, 2002, instruction, it did not
cross-reference or refer to it.

On June 5, 2003, the protestant filed its protest and application for
further review arguing that the antidumping duties should be deducted
from the Delivery Duty Paid Houston invoice value and that CBP
prematurely liquidated the entry.[^1] Included with the protest is the
purchase contract for the subject merchandise.

**ISSUES**

1.) Whether antidumping duties were identified separately from the price
actually paid or payable by Voest AG to the protestant such that they
are not included in the transaction value of the imported merchandise

2.) Whether CBP prematurely liquidated the entry

**LAW AND ANALYSIS**

**ISSUE 1**

The protestant argues that antidumping duties should not be included in
the transaction value. Merchandise imported into the United States is
appraised in accordance with section 402 of the Tariff Act of 1930, as
amended by the Trade Agreements Act of 1979 (TAA; 19 U.S.C. § 1401a).
The primary method of appraisement is transaction value, which is
defined as "the price actually paid or payable for the merchandise when
sold for exportation to the United States," plus amounts for certain
statutorily enumerated additions to the extent not otherwise included in
the price actually paid or payable. The transaction value of imported
merchandise does not include "customs duties and other federal taxes
currently payable on the imported merchandise by reason of its
importation," provided such customs duties and other federal taxes are
identified separately from the price actually paid or payable and any
additions thereto. 19 U.S.C. § 1401a(b)(3)(B). For purposes of this
decision, and inasmuch as we understand that the buyer and seller of the
imported merchandise are not related, we have assumed that transaction
value is the appropriate method of appraisement.

In HQ 545304(Jan. 4, 1994), "we determined that antidumping duties
constitute 'customs and other Federal taxes' such that they would not be
included in transaction value, provided the amount of the duties was
identified separately from the price actually paid or payable for the
imported merchandise." HQ 547612(Dec. 27, 2001). In the instant case,
the antidumping duties are listed on the entry summary. The terms of
sale for the subject merchandise were DDP, and the price included
antidumping duties paid by the seller. The purchase contract separately
identifies the antidumping duties from the price of the imported
merchandise. The purchase contract separately identifies the antidumping
duties from the price of the imported merchandise. Accordingly, the
antidumping duties at issue should not have been included in the
transaction value. To this end, however, please note that the
antidumping duties "currently payable" are the actual duties, which are
determined at the time of liquidation based on the rate in effect for
the subject entries. [See]{.underline} HQ 547612, at 4-5.

**ISSUE 2**

The protestant argues that CBP prematurely liquidated the entries
because as of the date of the protest (June 5, 2003), CBP had not
received liquidation instructions. The protestant therefore requests,
without citation to authority, that the bill be cancelled, the
liquidation rescinded, and the entry be accepted as entered.

First, the entry was not prematurely liquidated. CBP received
liquidation instructions on November 20, 2002, directing it to liquidate
all entries of hot rolled carbon steel flat products made between
September 1, 2001 and August 31, 2002, for all firms, at the cash
deposit or bonding rate at the time of entry. CBP's role in the
antidumping process is "simply 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). Insofar as the
subject entry was filed on July 31, 2002, the entry was subject to the
November 20, 2002, liquidation instruction. Therefore, CBP March 21,
2003, liquidation was not premature.[^2] Second, even if CBP did
prematurely liquidate the entry, CBP cannot rescind or "unliquidate" a
premature liquidation. [United States v. Utex International,
Inc.]{.underline}, 857 F.2d 1408 (Fed. Cir. 1988); HQ 221591(Feb. 13,
1990); HQ 223139(Aug. 29, 1991).[^3]

**HOLDING**

1.) In accordance with 19 U.S.C. § 1401a(b)(3)(B), the antidumping
duties are not included in transaction value. The protest should be
GRANTED as to this issue.

2.) CBP did not prematurely liquidate the entry. The protest should be
DENIED as to this issue.

In accordance with Section 3A(11)(b) of CBP Directive 099 3550-065,
dated August 4, 1993, Subject: Revised Protest Directive, you are to
mail this decision, together with CBP Form 19, to the protestant no
later than 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 the decision. Sixty days from the date of
the decision the Office of Regulations and Rulings will make the
decision available to CBP personnel, and to the public on the CBP Home
Page on the World Wide Web at www.cbp.gov, by means of the Freedom of
Information Act, and other methods of public distribution.

Sincerely,

Myles Harmon, Director

Commercial Rulings Division

[^1]: We note that the protest is timely insofar as it was filed within
    90 days of the March 21, 2003 liquidation date. [See]{.underline} 19
    U.S.C. § 1514(c)(3).

[^2]: We note that although CBP received an instruction, subsequent to
    liquidation, directing it to "continue to suspend" liquidation of
    the protestant's entries for the period of May 3, 2001 to October
    31, 2002, CBP had no legal obligation to re-evaluate the entry to
    determine if that post-liquidation instruction was applicable to the
    protestant's entry. [See]{.underline} [Fujitsu Compound
    Semiconductor, Inc v. United States]{.underline}, 246 F. Supp. 2d
    1334 (Ct. Int'l Trade 2003)(1520(c)(1) case)(holding that for CBP to
    make mistake in failing to take an action, the protestant must show
    that CBP had a legal obligation to take that action).

[^3]: However, CBP can reliquidate or liquidate an entry as entered if
    that result is correct.