HQ 224650

November 25, 1994

LIQ-4-01-CO:R:C:E 224650 PH

CATEGORY: Liquidation

District Director of Customs

423 Canal Street

New Orleans, Louisiana 70130

RE: Protest 2002-92-101740; Antidumping Duties; Effective Date

of Public Law 94-410, section 209(a); \"Absurd Consequences\"

Doctrine of Statutory Interpretation; Laches; 19 U.S.C.

1514

Dear Sir:

The above-referenced protest was forwarded to this office for

further review. At the request of the protestant, action on the

protest was suspended to given the protestant the opportunity to

submit additional materials. Also at the request of the

protestant, a meeting was held on October 14, 1994, between

officials of this office and the representative of the

protestant. At that meeting it was agreed that the protestant

would be given 30 days from the date of the meeting to submit

additional materials, after which the protest would be analyzed

and ruled upon based on the materials/arguments then available.

No additional materials were submitted after this meeting.

Copies of all materials submitted by the protestant which you may

not have are enclosed for your file.

Our decision follows.

FACTS:

According to the file and Customs records, between December of

1973 and May of 1974, the protestant entered certain merchandise

(DL Methionine) from Japan. The merchandise was entered in four

entries, which are the entries protested in this protest. The

merchandise under consideration was the subject of an antidumping

finding (Treasury Decision (T.D.) 73-188). T.D. 73-188 made

public determinations constituting a finding of dumping with

respect to synthetic methionine from Japan and added that finding

of dumping to the list of dumping findings in 19 CFR 153.43.

Previous notices in the Federal Register had given notice of an

antidumping proceeding (37 F.R. 17768, August 31, 1972); notice

of withholding of appraisement (38 F.R. 4525, February 15, 1973);

notice of investigation and hearing (38 F.R. 5212, February 26,

1973; 38 F.R. 6242, March 7, 1973); and notice of determination

of injury (38 F.R. 13065, May 18, 1973).

In a March 28, 1980, Federal Register notice (45 F.R. 20511), the

International Trade Administration (ITA) of the Department of

Commerce gave notice that it was conducting an administrative

review of findings of dumping, including the finding of dumping

in T.D. 73-188. In an August 13, 1981, Federal Register notice

(46 F.R. 40913), the ITA gave notice that it had conducted an

administrative review of the dumping finding under consideration

covering \"separate time periods for each of the firms through

June 30, 1980.\" For the firm under consideration during the

period \"2/12/73-6/30/80\" the dumping margin of 48% was found to

exist. In the notice it was stated that Customs shall assess

dumping duties on all entries made with purchase dates or export

dates, as appropriate, during the time periods involved and that

the ITA would issue appraisement instructions separately on each

exporter directly to Customs.

In Customs Information Exchange (C.I.E.) 394/72, Supplement 36,

dated March 5, 1982, notification of specific action for the

merchandise under consideration exported by the corporation under

consideration was published. According to this C.I.E., all

shipments of the merchandise exported to the United States by the

corporation and purchased during the period February 12, 1973,

through June 30, 1980, were to be assessed a dumping liability

equal to 48 percent. Also according to the C.I.E., liquidation

of the subject entries was to be suspended. The C.I.E. required

the filing of a \"reimbursement statement\", and provided that each

entry on which duty was to be assessed must be covered by such a

statement prior to appraisement and liquidation. In Telex 06815,

dated April 6, 1982, instructions were issued stating \"this telex

constitutes the lifting of suspension of liquidation (as of April

12, 1982) for all entries of synthetic DL methionine with

purchase or export dates, as appropriate, included in the time

periods in 2 above \[2/12/73-06/30/80 for the corporation under

consideration\].\"

Each of the four protested entries was liquidated on September

25, 1992, with anti-dumping duties in the total amount of

\$48,617. A \"reimbursement statement\" (see above), dated August

18, 1992, had been sent to the Customs office which liquidated

the protested entries and is included in the file.

On December 22, 1992, the protestant filed the protest under

consideration. The basis for the protest was stated to be:

\"Excessive dumping duties were illegally assessed on the DL

Methionine in the subject four entries. The statement of claims

and argument are attached hereto, which establish that the

subject entries should be liquidated \'as entered.\'\"

In a Memorandum in Support of Application for Further Review, the

protestant contends that the assessment of dumping duties on the

DL Methionine in the protested entries was void because the

entries should have been deemed liquidated with the duty rate

assessments required to be made as at the time of entry. The

protestant also claims that the assessments were in violation of

the instructions issued by Customs in T.D. 73-188 and by the

International Trade Administration in 1982. The protestant

contends that the delays involved in this case \"demonstrate

administrative laches and nonfeasance that negate the purported

liquidations \[since\] \[m\]ore than six years elapsed from entry to

the review begun in 1981 \... and more than ten additional years

went by before the instructions of April 1982 were followed.\"

The protestant cites Ambassador Division of Florsheim Shoe v.

United States, 3 Fed. Cir. (T) 28, 748 F. 2d 1560 (1984); Rector,

Etc., of Church of the Holy Trinity v. United States, 143 U.S.

457, 12 S. Ct. 511 (1892); and Pagoda Trading Corp., v. United

States, 5 Fed. Cir. (T) 10, 804 F. 2d 665 (1986). Based on these

cases, the protestant argues that under the \"absurd consequences\"

doctrine in the Church of the Holy Trinity case, \"it would

demonstrably be an erroneous construction to conclude that

Congress intended to leave all entries made prior to the

effective date of that provision \[i.e., 19 U.S.C. 1504(d)\] open

to perpetual ambiguity and uncertainty.\"

In a Supplement to the Memorandum in Support of Application for

Further Review, repeats the arguments made in the Memorandum in

Support of Application for Further Review. The protestant makes

the additional argument that \"\[t\]he excessive administrative

delay here, a genuine paradigm of laches, even more dramatically

\[i.e., than in Pagoda Trading Corp, supra\] abuses the due process

rights of this importer. The protestant cites American Permac,

Inc. v. United States, 10 CIT 535, 642 F. Supp. 1187 (1986), and

argues that in this case the importer does not have available to

it the remedies described in that case. The protestant

concludes: \"If the absurd consequences of sanctioning delays of

18 and 19 years is not to be imputed as intended by Congress, in

the face of \[19 U.S.C. 1504(d)\], this protest should be allowed.\"

Further review was requested and granted.

ISSUE:

May the protest in this case be granted?

LAW AND ANALYSIS:

Initially, we note that the protest was timely filed (i.e.,

within 90 days of the date of liquidation; see 19 U.S.C.

1514(c)(2)). The decisions protested are protestable under 19

U.S.C. 1514 (the exception in 19 U.S.C. 1514(b) (see, Nichimen

America, Inc. v. United States, 938 F. 2d 1286 (1991 Fed. Cir.))

is not applicable because Customs implementation of the ITA

instructions for assessing antidumping duties is protested, not

the antidumping determination itself).

In regard to the contention that the dumping duties were assessed

in violation of the instructions issued by Customs in T.D. 73-188

(published in the Federal Register on July 10, 1973 (38 F.R.

18382)) and by the International Trade Administration in 1982,

the protestant has not provided any evidence to establish this

contention. In each of the entries under consideration, the

antidumping duties assessed were equal to 48 percent. This was

the dumping margin found to exist by the ITA for the merchandise

under consideration for the corporation under consideration and

instructed to be applied to shipments of merchandise during the

period covering the entries under consideration. Thus, based on

the evidence available to us, dumping duties were assessed in

accordance with the applicable instructions. The protest must be

DENIED in this regard.

The protestant also contends that the entry should have been

deemed liquidated as entered. The protestant cites 19 U.S.C.

1504(d) in this regard. At the time of the liquidation under

consideration, that provision provided that for merchandise the

liquidation of which continues, at the expiration of four years

from the date of entry, to be suspended as required by statute or

court order, the entry shall be liquidated within 90 days after

the suspension of liquidation is removed (the provision has since

been amended by section 641, Title VI, NAFTA Implementation Act,

Public Law 103-182, 107 Stat. 2057, 2204). The \"deemed

liquidation\" provisions were enacted by Public Law 94-410,

section 209(a), 92 Stat. 902. These provisions were made

effective \"to the entry or withdrawal of merchandise for

consumption on or after 180 days after the enactment of this Act

\[October 3, 1978\]\" (Section 209(b), Pub.L. 95-410). See F.W.

Myers & Co., Inc. v. United States, 9 CIT 64, 607 F. Supp. 1470

(1985); and Peugeot Motors of America, Inc. v. United States, 8

CIT 167, 595 F. Supp. 1154 (1984), applying this effective date

to section 1504.

In the F.W. Myers case merchandise was entered in 1975 and 1976

and liquidated in 1983. In response to the plaintiff\'s arguments

that the \"deemed liquidation\" provisions of section 1504 applied

to the entries on the basis of the legislative history thereof,

the Court stated:

Resort to legislative history, however, is unwarranted

where a statute is unambiguous on its face. \... As this

Court previously noted, entries made prior to the effective

date of the statute are not subject to the time constraints

of 19 U.S.C. § 1504. \... The entries involved herein were

made well before the effective date of the statute, in this

case, April 1, 1979. The requirements of 19 U.S.C. § 1504

do not apply to entries made prior to that date. A plain

reading of the involved provisions discloses no mention of

their retroactive application, as asserted by plaintiff.

\[9 CIT at 64\]

The protestant attempts to circumvent the fact that the \"deemed

liquidation\" provision was not effective to the entries under

consideration (i.e., the statute was made effective to the entry

or withdrawal of merchandise for consumption on or after April 1,

1979, and the merchandise under consideration was entered in 1973

and 1974) by use of the \"absurd consequences\" doctrine. That is,

the protestant contends that it would be absurd \"to conclude that

Congress intended to leave all entries made prior to the

effective date \... open to perpetual ambiguity and uncertainty.\"

The protestant cites Church of the Holy Trinity, supra, and

Ambassador Division of Florsheim Shoe, supra, in this regard.

The latter case cited the former as \"\[a\] classic case, still

often cited\" for the application of this doctrine, and described

the doctrine as follows, quoting from Church of the Holy Trinity:

It is a familiar rule, that a thing may be within the

letter of the statute and yet not within the statute,

because not within its spirit, nor within the intention of

its makers. \[3 Fed. Cir. (T) at 32, quoting from 143 U.S.

at 459\]

Subsequent to the Church of the Holy Trinity decision, the

Supreme Court addressed the doctrine in Crooks v. Harrelson, 282

U.S. 55, 60, 51 S. Ct. 49, 50 (1930). In the Crooks case, the

Supreme Court stated:

\... a consideration of what is there \[i.e., in Church of

the Holy Trinity\] said will disclose that the principle is

to be applied to override the literal terms of a statute

only under rare and exceptional circumstances. The

illustrative cases cited in the opinion demonstrate that,

to justify a departure from the letter of the law upon that

ground, the absurdity must be so gross as to shock the

general moral or common sense. \... And there must be

something to make plain the intent of Congress that the

letter of the statute is not to prevail. \[See also,

Sturges v. Crowninshield, 4 Wheat. 122, 202-203 (1819),

\"But if, in any case, the plain meaning of a provision, not

contradicted by any other provision in the same instrument,

is to be disregarded, because we believe the framers of

that instrument could not intend what they say, it must be

one in which the absurdity and injustice of applying the

provision to the case, would be so monstrous, that all

mankind would, without hesitation, unite in rejecting the

application\"; and Tennessee Valley Authority v. Hill, 437

U.S. 153, 98 S. Ct. 2279 (1978); De Ruiz v. De Ruiz, 88 F.

2d 752, 754 (D.C. Cir. 1936); Hart v. United States, 585 F.

2d 1025, 1033 (Ct. Cl. 1978).\]

Clearly, in this case, there is no absurdity \"so gross as to

shock the general moral or common sense\" or \"so monstrous, that

all mankind would, without hesitation, unite in rejecting the

application\", nor is there anything making \"plain the intent of

Congress that the letter of the statute is not to prevail.\"

Indeed, the consequence that the protestant argues is absurd

(i.e., to conclude that Congress intended to leave all entries

made prior to the effective date of section 1504(d) open to

perpetual ambiguity and uncertainty) is not, in fact, at all

absurd. Before enactment of the provision under consideration,

\"\[t\]here \[was\] no \... law requiring liquidation to be completed

within a specific time period\", as recognized in the legislative

history to Public Law 95-410 (Senate Report (Finance Committee)

95-778, 95th Cong., 2d Sess., 31, reprinted in 1978 U.S.C.C.A.N.

2211, 2242; see also Ambassador Division of Florsheim Shoe, supra

(\"\[t\]he prior law had been that Customs might delay liquidation

as long as it pleased \...\", 3 Fed. Cir. (T) at 30)). In Public

Law 95-410, Congress changed this rule. In enacting this change,

Congress specifically provided that the change \"applie\[d\] to the

entry or withdrawal of merchandise for consumption on or after

180 days after the enactment of \[the\] Act\" (Public Law 95-410,

section 209(b), 92 Stat. 903). The primary purpose for the

legislation was to \"increase certainty in the customs process \...

(Senate Report 95-778, supra, 1978 U.S.C.C.A.N. at 2243); see

also Ambassador Division of Florsheim Shoe, supra, 3 Fed. Cir.

\(T\) at 33).

That is, Congress recognized the prior law and then changed that

law, effective on a date certain. Not only is this not absurd,

it is consistent with the presumption against retroactivity in

the interpretation of statutes (see Bowen v. Georgetown

University Hospital, 488 U.S. 204, 208, 109 S. Ct. 468, 471

(1988)), which was resoundingly confirmed in the 1994 Supreme

Court case of Landgraf v. USI Film Products, 114 S. Ct. 1483. To

adopt the protestant\'s position in this regard would result in

the retroactive application of the statute under consideration to

transactions which occurred more than four years prior to the

effective date of the statute. Furthermore, accepting the

clearly stated effective date of the provision under

consideration is consistent with the purpose of the provision, to

provide certainty in Customs transactions (i.e., because the

retroactive application of a statute, by its very nature,

increases uncertainty in the transactions to which the statute

applies (see, Landgraf, supra, 114 S. Ct. at 1500)).

The application of the statutory provision under consideration in

the situation under consideration is not an absurdity \"so gross

as to shock the general moral or common sense\" justifying the

application of the doctrine in the Church of the Holy Trinity

case. Rather, as was held in F.W. Myers, supra (see quotation

above), this is a matter governed by the primary rule of

statutory construction, i.e.: \"\[w\]hen interpreting a statute a

court first must examine the statutory language \[and\] \[i\]f the

language of the statute is clear and unambiguous, judicial

inquiry is complete and that language controls absent rare and

exceptional circumstances (In re Perroton v. Gray, 958 F. 2d 889,

893 (9th Cir. 1992), and cases cited therein). In this case, the

statute clearly and unambiguously provides that the provision

under consideration is effective to entries or withdrawals of

merchandise for consumption on or after April 1, 1979, well

before the entries under consideration. The protest is DENIED in

this regard.

In regard to the argument by the protestant that relief should be

granted on the basis of laches, we note that laches is an

equitable doctrine (see, e.g., A.C. Aukerman Co. v. R. L. Chaides

Const. Co., 960 F. 2d 1020, 1030-1031 (Fed. Cir. 1992); Robins

Island Preservation Fund v. Southold Dev., 959 F. 2d 409, 423-424

(2nd Cir. 1992)). Equitable principles do not operate against

the Government in cases involving the collection or refund of

duties on imports (Air-Sea Brokers, Inc. v. United States, 66

CCPA 64, 67-68, C.A.D. 1222, 596 F. 2d 1008 (1979); see also

Mitsubishi Electronics America, Inc. v. United States, CIT Slip

Op. 94-155, printed in the October 26, 1994, Customs Bulletin and

Decisions, Vol. 28, No. 43, p. 69). Since this is a case

involving the collection or refund of duties on imports, the

doctrine of laches is not available in this case.

Even if the doctrine of laches were available in a case such as

this, the protestant has not established that the doctrine is

applicable in this case. That is, \"\[t\]he imposition of laches

requires both unreasonable delay by the petitioner, and prejudice

to the respondent because of the delay \[and furthermore,\]

\[l\]aches is an affirmative defense, and the burden of proving

both elements rests with the party raising it\" (Hoover v.

Department of Navy, 957 F. 2d 861, 863 (Fed. Cir. 1992), emphasis

added; see also, Costello v. United States, 365 U.S. 265, 282, 81

St. Ct. 534, 543 (1961)). In this case, the protestant has not

established prejudice (i.e., according to all information

available, the entries under consideration were subject to an

antidumping margin of 48% and that was the margin which was

applied).

On the basis of the foregoing (i.e., because laches is not

available in a case involving the collection or refund of duties

on imports and, even if it were available, in this case the

protestant has not met the requirements for application of

laches) the protest must be DENIED in regard to this issue.

HOLDING:

The protest is 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

Enclosures