Slip Op. 06-107 UNITED STATES COURT OF I NTERNATIONAL

TRADE

____________________________________ : AMERICAN NATI ONAL FI RE : INSURANCE COMPANY, : : Plaintiff, : : Before: Judi th M. Barzi lay, Jud ge v. : Court No. 00-00022 : UNI TED STATE S, : : Defend ant. : ____________________________________: OPINI ON [Plaintiff's motion for summary judgme nt is denied, and Defendant's motion for summary judgment is granted.] Dated: July 18, 2006 Law O ffic es of B arry M

. Bore n (Barr

y M. Bo ren) for Plaintiff American National Fire I nsurance Co. Peter D. Keisler , Assistan t Attorne y G eneral ; (

James A. Curley ), Civil Division, Commercial Litig ation Br

anch; ( Barbara S. Williams ), Attorney in Charg e, International Tra de Field Office; Aimee Lee , Inte

rnationa l Trade F ield Off

ice; John J. Mahon , International Trade Field Office, United Sta

tes Depa rtment of Justice; Yelena Slepak , Office of Assista

nt Chief Co

unsel, International Trade

Litigation, United States Customs and Border Protec tion, of counsel, for Defendant United States.
BARZIL AY, JUDGE: This case recites the unhappy history of a small America n importer and its surety while it attempted to g row its business by importing a produc t it had never imported before to serve what it hoped would be an incre asing market. Inste ad, it found the transaction subject to the confusing interactions of three government agencies r

egulating international trade. Unfortunately , the importer’s efforts ran afoul of an unusually complicated antidumping case - one whose order wa s ultimately revoked by the Department of CommerceCourt No. 00-00022 Page 2

1 Effective March 1, 2003, the United States Customs Service was rena med the Bureau of Customs and Border Protection of the United States Department of Homeland Sec urity. (“Commer

ce”) be cause of

the crimi nal beha vior of so me United

States ind

ustry executive s. This relatively simply

matter could have been resolved at sever al points in the administrative proceedings leading up to the filing of the summons and complaint in this Court. Plaintiff surety and its law

ye r valian tly a ttempted t

o get ac tion from a

number of

Customs bureaucrats at the United States Customs Service (“Customs”), 1 both at the relevant port and at Customs Headquarters, to no avail. The court strongly suggested a settlement, which the par ties were unable to reach. As a re sult, the Government has unjustly enriche d itself at the expense of the surety, and the

court cannot undo the damage, as will be explained. Plaintiff America n Nationa l Fire I nsuranc e Company

(“ANF ”) has f

iled suit a gainst Customs’ denial of its timely-filed protest ag ainst Customs’ assessment of antidumping (“AD”) duties on a shipment of ferrosilicon from the People’s Republic of China (“China”). See Pl.’s Br. 1. ANF was the surety

for Amlon Metals, Inc. (“A mlon”), the firm that imported the ferrosilicon at issue. ANF asserts that it is not liable for the AD duties because Customs improperly denied its timely-filed protest. Customs asserts that its denial was proper. B oth parties have filed for summary judgme

nt. For the reasons discussed below, the court must gra nt Defendant’s motion for summa

ry judgmen t and deny

Plaintiff ’s motion f

or summar

y ju dgment. Procedural History On January 21, 1993, Commerce issued a final determination that ferrosilicon from China was being sold below fair value. Final Determination of Sales at Less Than Fair Value: Ferrosilicon from the People’s Republic of China , 58 Fed. Reg. 5,356-03 (Dep’t of CommerceCourt No. 00-00022 Page 3

2 Customs asserts that Amlon did not give notice of an address change until February

4, 1999, when Amlon and ANF executed a Rider to Customs Bond Form C.F. 301. See Def.’s Br. 36; Pl.’s Ex. P. ANF alleges that Customs had actual notice of Amlon’s correct addr ess as early

as 1996, when ANF filed the original Customs bond with Customs, and because Amlon’s correspondence with Customs used Amlon’s correct addre ss, as did the Entry Summary form for the entry at issue. See Pl.’s Br. 7-8; Pl.’s Ex. G. Jan. 21, 1993). On March 11, 1993, Commerce issued an AD order on imports of fer rosilicon from China, with an accompany ing AD duty r

ate of 137.73% ad valorem

. Antidumpi ng Duty Order: Ferrosilicon from the People’s Republic of China , 58 Fed. Reg. 13,448-01 (Dep’t of Commerce Mar. 11, 1993). On November 17, 1997, Amlon’s ferrosilicon purchase fr om China was entered at the port of Seattle. See Pl.’s Ex. B. The Entr y Sum mary form des cribed t

he produ ct as “F erroal loy s, Other” and classified it under the corresponding Harmonized Tariff Schedule of the United States (“HTSUS”) subheading 7202.29.0050. See Pl.’s Ex. B. Ferros ilicon cla ssified un der this provision was subje ct to the Ma

rch 11, 1 993, AD or

der. For reasons that ar

e unclea r, Customs did not assess the 137.73% duty at the time of e ntry. See Pl.’s Ex. B. Customs faxed a Request for Information to Amlon on March 3, 1998, asking for supporting documents to verify the classification of the merchandise. See Pl.’s Ex. M. It appears that Custom s sent the

fax after attempts t

o contact Amlon thr

ough the mail faile d becau se Customs had an incorrect, older address for Amlon on file. See Pl.’s Br. 7; Def.’s Br. 36. Amlon moved to its current address in July 1995, more than two y ears before events surrounding the instant case began. 2 On March 21, 1998, Customs sent Amlon and ANF notice that liquidation of the en try was bein g suspe nded. Cust

oms’ rec ords show

that it mail ed Amlon’ s notice a gain toCourt No. 00-00022 Page 4

3 The Notic e of Acti on was a Cu stoms For m 29. 19 C.F .R. § 152.2states tha t notifica tion to importers of incr

eased du ties shall be sent us ing Custo ms Form 29and rea ds in pert inent par t: If the port director be lieves that the entered rate or value of a ny mercha

ndise is too low . . . and the estimated aggregate of the increase in duties on that entry exceeds $15, he shall promptly notify the importer on Customs Form 29, specify ing the nature of the difference on the notice . Liquidation shall be made promptly and shall not be withheld for a period of more than 20 day s from the date of mailing of such notice unless in the judgment of the port director there a re compelling reasons that would warrant such action. 19 C.F.R. § 152.2. the outdated address, though it mailed ANF’s notice to the cor rect address. See Def.’s Ex. 1. Amlon claims that it never received the notice of suspension. See Pl.’s Br. 18. On March 23, 1998, Amlon replied to Customs’ March 3, 1998, Request for Infor mation. See Pl.’s Ex. N. On September 14, 1998, Commerce issued instructions to Customs to liquidate entries of ferrosilicon from China that entered the United States between Ma rch 1, 1997, and February 28, 1998, in ac cord

ance with t he ADorde

r. De p’t of Comme rce M essa

ge N o. 825 7111; Def. ’s Ex. 2. Nine days later, Customs issued a Notice of Action 3 to Amlon de manding that Amlon

submit a statement certify

ing that Amlon had not been reimbursed for any antidumping duties pursuant to 19 C.F.R. § 351.402(f)(2). Customs sent this notice to Amlon, but again used the incorrect address. See Pl.’s Ex. R. While it is unclear whether Amlon or ANF received the Notice of Action, Customs cancelled the Notice on October 26, 1998, before Amlon or ANF took any action. See Pl.’s Br. 8; Pl.’s Ex. R. Customs provided no explanation for cancelling the Notice and did not issue any other Notice of Action to Amlon or ANF. Per Commerce’s September 14, 1998, liquidation instructions, Customs liquidated Amlon’s entry with a duty rate of 137.73% ad valorem on November 20, 1998. See Def.’s Br. 1.Court No. 00-00022 Page 5

4 The Government claims that it denied the protest itself on July 9, 1999. However, the form returned to Plaintiff had only the box labeled “application for further review” c hecked as denied. On March 19, 1999, Customs made a demand on ANF to pay the AD duties assessed against the entry

. See Def.’s B r. 2. On A pril 27, 19 99, ANF f

iled a time ly protest against this demand for pay

ment, claiming that the liquidation, suspension, and classification of the merchandise were improper. See Pl.’s Ex. Q. ANF asserts that it had an oral follow-up discussion with Customs on June 29, 1999, about an International Trade Commission (“I TC”) investigation into the original AD order on ferr osilicon from China. See Pl.’s Br. 11-12. I n its brief, ANF claims that it discussed the liquidation and classification claims and asked Jerry Malmo, the Seattle Import Specialist, to withhold a decision on the protest because it appeared that the ITC had set a date to re solve the investigation. See Pl.’s Br. 11-12; Pl.’s Ex. X. Despite ANF’s efforts, on July 9, 1999, Customs denied ANF’s application for further review of its original protest, asserting that the mer chandise was properly

liquidated per Commerce’s instructions. See Pl.’s Ex. AA. 4 Following this denial, on July 22, 1999, ANF continued its efforts by se nding Customs a supplement to its protest. See Pl.’s Ex. BB. On August 4, 1999, Customs sent ANF a letter rejecting the supple ment as untimely. See Pl.’s Ex. Z. This letter explicitly informed Plaintiff that its protest had bee n denied. Meanwhile, the ITC decide d to reexamine its original injury de termination and issued a notice on May 20, 1998, re questing comments for a review of AD duties on imports of ferrosilicon in light of the “revelation of a nationwide f errosilicon price-fixing conspiracy maintained by major U.S. fe rrosilicon producers.” Ferrosilicon from Brazil, China, Kazakstan, Russia, Uk

raine, and

Venezue la , 63 Fed. Reg. 27,747-01, 27,747 (I nt’l Trade Comm’n May 20,Court No. 00-00022 Page 6

1998). During the investigation, Commerce directed Customs to continue liquidation of entries of ferrosilicon imports under the original AD order

. See Dep’t of Commerce Message No. 8257111; Def.’s Ex. 2. Commerce finally r

escinded the AD order on ferrosilicon from China on Septembe r 21, 1999. See Ferrosilicon from Brazil, Kazakhstan, People’s Republic of China, Russia, Ukraine, and Vene zuela , 64 Fed. Reg. 51,097-01 (Dep’t of Commerce Sept. 21, 1999). Commerce rescinded the order ab initio , stating that “rescission of these [AD] orders are eff ective from the date of their original issuance.” Id. at 51,098. Following the August 4, 1999, denial letter from Customs and Commerce’s rescission of the AD duties, ANF contacted Stuart Seidel, then the Assistant Commissione

r of Custom s of Reg

ulations a nd Ruling s, to discu ss ANF’s options in pursuing its protest. See Pl.’s Br. 14-15. Per Mr. Seidel’s recommendation, ANF sent document s to vario

us Customs of

ficials on Septembe

r 28, Oct ober 25, and Nove

mber 9, 19 99, to continue its attempt to have Customs reconsider the assessed AD duties. See Pl.’s Br. 39; Pl.’s
Exs. FF, GG, HH. In Dec ember 1 999, M r. Sei del in forme d ANF t hat Cu stom s woul d not change its denial of ANF’s protest and that ANF should seek rec ourse in this Court. See Pl.’s Br. 15. On January 4, 2000, ANF filed a summons before this Court and filed its complaint on January 26, 2000. Standard of Review Both parties have filed for summary judgment. Under USCIT Rule 56(c ), summary judgment is appropriate “if the pleadings, de positions, answers to interrogatories, and admissions on file, together with the affidavits, if any , show that there is no genuine issue as to any material fact an d that the moving pa

rty is entitle d to a judg

ment as a matter of law.” USC IT R. 5 6(c); seeCourt No. 00-00022 Page 7

5 Neither party

disputes that the protest was filed in a timely manne r.

6 Section 1581(a) grants this Court jurisdiction over valid protests to Customs and reads, “[t]he Court of I nternat ional Tra de shall h ave exclu sive juris diction of any civil act ion comme

nced to contest the denial of a protest, in whole or in part, under section 515 of the T ariff Act of 1930 [19 U.S.C. § 1515].” 28 U.S.C. § 1581(a). Celotex C orp. v. Cat

rett , 477 U.S. 31 7, 322 (19 86); Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). Parties moving for summary judgment bear the burden of demonstrating that there are no genuine issues of mate rial fact in dispute. Avia Group Int’l, Inc. v. L.A. Gear Cal.,
Inc. , 853 F.2d 1557, 1560 (Fed. Cir. 1988). The court must “‘determine w hether there are any factual disputes that are material to resolution of the action. The c ourt may not resolve or try factual issues on a motion for summary judgment.’” Sea-Land Serv., Inc. v. United States , 23 CIT 679, 684, 6 9 F. Su pp. 2d 1371, 1375 ( 1999) (quot ing Phone-Mate, Inc. , v. United States , 12 CIT, 575, 577, 690 F. Supp. 1048, 1050 (1988)), aff’d , 239 F.3d 1366 (Fed. Cir. 2001).
Plaintiff’ s Claim ANF con tests Custo ms’ denia

l of its Apr

il 27, 1999, protest 5 and asserts jurisdiction for all claims under 28 U.S.C. § 1581(a). 6 See Compl. ¶ 1. For this Court to exercise jurisdiction

over a c laim unde

r § 1581(a

), the pa rty filing su it must have

filed a v alid prote st agai

nst Customs in a timely manner. See U.S. Shoe Corp. v. United States , 114 F.3d 1564, 1568 (Fed. Cir. 1997), aff’d , 523 U.S. 360 (1998); Juice Farms, Inc. v. United States , 68 F.3d 1344, 1345-46 (Fed. Cir. 1995); Atari Caribe, Inc. v. United States , 16 CIT 588, 592, 799 F. Supp. 99, 104 (1992). To qualify as valid, a protest mu st set for

th distinct

ly a nd specif ically – (A) ea ch decis ion descr

ibed in subsection (a) of this section as to which protest is made; (B) ea ch category

of merchandise affected by

each decision set forth under parag raph (1); (C) the nature of each objection and the rea sons therefor; and (D) any other matter required by

the Secretary

by reg ulation.Court No. 00-00022 Page 8

19 U.S.C. § 1 514(c)( 1). I n addition , the prot

est must contain the following information: (1) The n ame and a

ddress of the prote stant . . . a

nd the name and ad

dress of his agent or attorney

if signed by

one of these; (2) The importer number of the protestant. . . ; (3 ) T he nu mb er an d d at e o f t he en tr y; (4) The date of liquidation of the entry . . . ; (5) A specific description of the merchandise a ffected . . . ; (6) The nature of, and justification for the objection set for th distinctly and specific ally

with resp ect to ea

ch cate gory, pay

ment, cla im, decisi on, or re fusal; (7) The d ate of r eceipt a nd protes t number o f any protest previousl

y f iled that i s the subject of a pending application for furthe r review pursuant to Subpart C of this part a nd that is a

lleged to involve

the same mercha ndise and the same issues . . . ; (8) If another pa

rty has not filed a timely

protest, the surety’s pr

otest shall certify that the protest is not being filed collusively to extend another authorized person’s time to protest; and (9) A declaration, to the best of the protestant’s knowledg e, as to whether the entry is the subject of dr

awback, or whether the entry has been referenced on a certificate of delivery

or certificate of manufacture and delivery so a s to enable a party to make suc

h entry the subject of drawback . . . . 19 C.F.R. § 174.13(a). While the specific information necessary for each protest depends on the facts, a valid protest must, at a minimum, give “some information within the protest . . . that was reasonably

calculated to direct the mind of Customs to the full nature of a specific cla im.” Koike Aronson, Inc. v. United States , 21 CIT 1056, 1057, 976 F. Supp. 1035, 1037 (1997), aff’d , 165 F.3d 906 (Fed. Cir. 1991). ANF first claims that Customs im properl y a ssessed A

D duties be cause Cu stoms liquidated the entry despite A NF’s requests to delay

liquidation pending the outcome of the ITC investigation into the original AD order. See Compl. ¶¶ 13-29; Pl’s. Br. 38-39. Secondly, A NF claims tha

t Customs’ li quidation

was impro

per bec ause Customs did not pr ovide Amlo

n withCourt No. 00-00022 Page 9

7 Notice of suspension. If the liquidation of an entr y is suspended as re quired by statute or court order, as provided in parag raph (a)(2) of this section, the port director promptly shall notify the importer or the consignee and his ag ent and surety on Customs Form 4333-A, appr opriately modified, of the suspe nsion. 19 C.F.R. § 159.12(c).

8 Because Plaintiff filed its summons on January 4, 2000, and complaint on January 26, 2000, the Court can have no jurisdiction to hear its claims under 28 U.S.C. § 1581(i). See 28 U.S.C. §§ 1581, 26 32(a)- (c); USCI T R. 3(a) ; Autoalliance Int’l, Inc. v. United States , 29 CIT __, 398 F. Supp. 2d 1326 (2005). actual notice of a suspension, as required by 19 C.F.R. § 159.12(c). 7 See Compl. ¶¶ 40-43; Pl.’s Br. 16-24. ANF also claims that Customs improperly classified the subject merchandise. See Compl. ¶¶ 31-38; Pl.’s Br. 25-31. Finally , ANF claims that it is not liable for the pay ment of interest accrued on the AD duties. See Compl. ¶ 48. Discussion Subject matter jurisdiction is “the legal authority of a court to hear and decide a pa rticular type of ca se.” Erwin Chemerinsky , Federal Jurisdiction 259 (4th ed. 2003). A court must have subject matter jurisdiction over a claim “because it involves a cour t’s power to hear a case, [and] can never be forfeited or wa ived.” United States v. Cotton , 535 U.S. 625, 630 (2002). Moreover, courts “have an independe nt obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge fr om any party .” Arbaugh v. Y&H Corp. , 126 S .Ct. 1235, 1244 ( 2006) (citi ng Ruhrgas AG v. Marathon Oil Co. , 526 U.S. 574, 583 (1999)). Under USCIT Rule 12(h) (3), “[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.” USCIT R. 12(h)(3). 8Court No. 00-00022 Page 10

9 The imprecise use of the word “assessment” by the parties throughout this case causes confusion with res

pect to th e nature

of the AD

claim. Pla

intiff sta tes in its c omplaint that it is protesting “Customs’ decision to assess antidumping duties” in light of the ITC’s investigation into the original AD orders. Compl. ¶ 22. Plaintiff argues that this Court has jurisdiction to hear the AD cl aim beca

use Plaint iff prote sts the “r

ate and a mount of du

ties cha rgeab le” and “ all charges or exactions of whatever character within the jurisdiction of the Secretary of the Treasury .” Pl.’s Br. 38. Plaintiff’s complaint and brief imply that it is protesting the collection of AD duti es. Howe

ver, De fendant

in its brie f interpr

ets Plainti ff’s use

of the word “asse ssment” to mean calculation of AD duties. See Def.’s Br. 11-12. The confusion is compounded by the use of the word in statute and case law. 19 U.S.C. § 1 673e add

resses the assess ment of du ties and s tates tha

t Commerc e “dire cts custo ms officers to assess” in the sense that “assessment” mea ns collection. See Mitsubishi Elecs. Am., Inc. v. United States , 44 F.3d 973, 976 (Fed. Cir. 1994) (describing § 1673e (a)(1): “Commerce conducts the antidumping duty inve stigation, calculates the antidumping margin, a nd issues the antidumping duty order . Commerce then directs Customs to collect the estimated duties.”). However, to assess is defined as “to calculate the rate and amount” in Black’s Dictionary

. Deluxe Black’s Law D ictionary 116 (6th ed. 1997) . Defendant’s characterization of Plaintiff’s claim as a protest against the calculation of duties see ms to be based on the dictionary meaning of “assess.” Meanwhile, Plaintiff uses “assess” in its statutory meaning. Either interpretation leaves Plaintiff without jurisdiction in this Court. A. T HE ANTIDUMPI NG C LAIM America n Nationa l Fire a sserts tha

t this Court has jurisdi ction ove r its antid umping c laim pursuant to 28 U.S.C. § 1581(a) because the claim is a protest pursuant to 19 U.S.C. § 1514(a)(2) and (3). See Pl.’s Br. 38. For this court to have jurisdiction pursuant to 28 U.S.C. § 1581(a), there must be a valid protest filed against a dec ision of Customs at the administrative level. See Juice Farms, Inc. , 68 F.3d at 1345-46. The vague lang uage in Plaintiff’s complaint leaves the exact nature of the AD claim unclear and could be interpreted as either a challeng e to the calcula tion of dut

ies or, a lternati vely , as a cha

llenge to the col lection o f duties. 9 Plaintiff’s Complaint asserts that ANF filed a timely protest against the “pay

ment of antidumping duties assessed against Amlon” and that ANF is not responsible for the duties since “the ITC was reconsi dering

its assessment of a

ntidumping

duties on f

errosili con impor

ts from Chin

a.” Compl. ¶¶ 11, 26. The former inter pretation results i

n an inval id protes t becaus e calcu lation of d

uties inCourt No. 00-00022 Page 11

10 ANF’s AD protest to Customs read, “I MPROPER APPRAISEMENT: We protest the appraisement and duty

assessment on all merchandise involved in the subject entry . The merchandise should have been appraised a t the invoiced unit values or at values less than the liquidated values in accordance with the appraise ment statutes and regulations.” Pl.’s Ex. Q.

11 In re levant pa

rt, 19 U.S. C. § 1673e( a)(1) s tates tha t Commerc e “dire cts custo ms office rs to assess . . . antidump ing dut[ie s].” 19 U.S. C. § 1673e( a)(1); see also Mitsubishi Elecs. Am., Inc. , 44 F.3d a t 976 (des cribing

§ 1673e( a)(1): “ Commerce conducts the antid umping du

ty investigation, calculates the antidumping margin, and issues the antidumping duty orde r. Commerce then directs Customs to collect the estimated duties.”)

12 “The Court of Interna

tional Trade shall have exclusive jurisdiction of any civil action commenced under section 516A of the Tariff Act of 1930 [19 U.S.C. § 1516a].” 28 U.S.C. § 1581(c). an AD context is performed by Commerce and involves no decision by Customs. The latter interpretation results in an invalid protest because the Customs’ action ANF objects to is not protesta ble by statute. I n either case, th is court la cks subje ct matter

jurisdict ion over t he claim. 1. The Antidumping Claim as a Complaint Against the Calculation of AD Duties Defendant equates ANF’s use of the phrase “assessment” of AD duties with “calc ulation” of AD duti es. 10 See Def.’s Br. 11-12. A challeng e to the calculation of AD duties is an issue for Commerce, not Customs, since calculation of such duties is a function reserved for Commerce. See 19 U.S.C. § 1673e(a)(1); 11 U.S. Shoe Corp. , 114 F.3d at 1570; see also Nichimen Am., Inc. v. United States , 938 F.2d 1286, 1290 (Fed. Cir. 1991). I f the antidumping claim were a complaint against the calculation of antidumping duties, this Court could have jurisdiction pursuant to 28 U.S.C. § 1581(c) 12 because § 1581(c) gra nts this Court jurisdiction over final determinations by Commerce in antidumping procedures, which includes the c alculation of AD duties. See 19 U.S.C. § 151 6a(a)(2)(B); Shinyei Corp. of Am. v. United States , 355 F.3d 1297, 1304 (Fed. Cir. 2004).Court No. 00-00022 Page 12

Therefore, to challenge

the imposition of AD duties, a party must direct a request for administrative review to the Department of Commerce pursuant to 19 U.S.C. § 1675. See 19 U.S.C. § 1675. ANF could not incorporate this challenge in its protest to Customs. The court lacks subject matter jurisdiction pursuant to 28 U.S.C. § 1581(c) as ANF never r equested such review. Further

more, since this ty

pe of ca lculation by C ustoms is not

included in the pro testable decisions under 19 U.S.C. § 1514(a), this Court does not have jurisdiction over this issue under 28 U.S.C. § 1581(a). 2. The Antidumping Claim as an Objection Against the Collection of Duties Pl ai nt if f’ s A D c la im ma y re fe r i ns te ad to Cu st om s’ li qu id at io n o f t he fe rr os il ic on en tr y, which affected the collection of the AD duties. See Pl.’s Br. 38-39. Un like a determinat

ion with regard to the amount of imposition of AD duties pursuant to an AD order , liquidation of entries is a function that belongs to Customs. See Mitsubishi Elecs. Am., Inc. , 44 F.3d at 976-77.
Howeve r, while e ntry liquidation is a Custom s function , it is not al way s a Customs decision

. Id. ; see U.S. Shoe Corp. , 114 F.3d at 1569 (“‘[D]ecisions’ of Customs are substantive determinations involving the appli cation of

pertine nt law and

preced ent to a se t of fac ts . . . . Customs must engage in some sort of dec ision-making process in order for there to be a protestable decision.”). Thus, for the Court to have jurisdiction under 28 U.S.C. § 1581(a), ANF must have protested a “decision” made by

Customs under 19 U.S.C. § 1514. 19 U.S.C. § 1514(a) lists the scope ofCourt No. 00-00022 Page 13

13 The rele

vant lang uage f rom § 1514( a) state s: [A]ny clerical error, mistake of fact, or other inadvertence . . . a dverse to the importer , in any

entry , liquidati on, or re liquidation, and, de cisions of the Customs Service . . . as to – (1) the appraised value of mercha ndise; (2) the classification and rate and amount of duties cha rgeable; (3) all charges or exactions of whateve r character within the jurisdiction of the Se cr et ar y of

th e T re as ur y; (4) the exclusion of merchandise from entry or delivery or

a demand for redelivery to customs c

ustody under an y pr ovision of the customs laws, except a determination appealable under section 1337 of this title; (5) the liquidation or reliquidation of an entry , or reconciliation as to the issues contained therein, or any

modification thereof, including the liquidation of an entry, pursuant to either

section 1500 or section 1504 of this title; (6) the refusal to pay

a claim for drawback; or (7) the r efusal to reliquida te an ent ry under sub section ( d) of section 1520 of this title; shall be final and conclusive upon all persons (including the United States and a ny office r there of) unle ss a prote st is filed in accor dance w ith this section, or un

less a civil act ion conte sting the

denial of a protes t, in whole

or in par t, is comme

nced in the United States Court of International Tra de . . . . 19 U.S.C. § 1514(a). Customs “decisions” that a protestant can challenge. 13 The seven categories listed in § 1514(a) are exclusive, and if “Customs’ underly ing decision does not relate to any of these seven categ ories, th e court may

not exerc ise § 1581( a) jurisd iction ove r an act ion conte sting Cust

oms’ denial of a protest filed against that decision.” Playhouse Imp. & Exp., Inc. , 18 CIT 41, 44, 843 F. Supp. 716, 719 (1994). Plaintiff contests the “decisions of Customs as to the ‘rate and amount of duties chargeable’ and ‘a

ll charges or exactions of whatever c haracter within the jurisdiction of the Secreta ry of the Tr easury ’” under

19 U.S.C. § 1 514(a)(2) and (3 ). Pl.’s B r. 38. Cust oms’ role in liquidating entries subject to AD orders is “merely ministerial,” and those actions do not amount to antidumping “decisions” under 19 U.S.C. § 1514. See Mitsubishi Elecs. Am., Inc. , 44 F.3d atCourt No. 00-00022 Page 14

14 ANF also claims that follow up letters it sent to Customs on September 28, October 25, and November 9, 1999, constitute 19 U.S.C. § 1520(c) petitions to protest “a mistake of fact on the part of the ITC.” See Pl.’s Br. 39. Section 1520(c), now repealed, re ferred to mistakes of fact made by Customs or the importer. See G& R Produce Co. v. United States , 381 F.3d 1328, 1332 (Fed. Ci r. 2004). Howeve

r, beca use asse ssment of A

D duties do es not fa

ll under Cu stoms’ purview, § 1520(c) does not apply as a valid form of protest, and ANF’s petition fails.

15 ANF stated in its original protest to Customs at the administrative level that the surety did not receive notice. However, ANF ’s complaint and brief before this court aver that Amlon, the importer, did not receive notice. See Compl. ¶ 43, Pl.’s Br. 17-25, Pl. ’s Ex. Q. Thi s inconsistency does not make the protest invalid since a protest need only give “some information within the

protest . . . that wa s reasonably calcula ted to dire ct the mind

of Customs t

o the full nature of a specific claim” to meet specif icity requireme

nts in 19 U.S.C. § 1514(c). Koike Aronson, Inc. , 21 CI T at 1057; see also 19 U.S.C. § 1514(c); 19 C.F.R. § 174.13(a).

16 A protest concerning Customs’ adherence to 19 U.S.C. § 1504 (Customs’ limitations on liquidation includin

g sendin g notice s of suspe

nsion) constitutes a

recog nized cat egory of prote sts under 19 U.S.C. § 1514(a)(5). Therefore, the court has jurisdiction under 28 U.S.C. § 1581(a) over the liquidation claim. 977; LG Elecs. U.S.A., Inc. v. United States , 21 CIT 1421, 1425, 991 F. Supp. 668, 673 (1997). Customs liqu

idates a n entry to collect antidumpi

ng dutie s per Comme

rce’s in struction s, it possesses no discretion in the matter. See Hynix Semiconductor Am., Inc. v. United States , 30 CIT __, _ _, 414 F. Sup p. 2d 1 317, 1 327 (2 006) ( citi ng Mitsubishi Elecs. Am., Inc. , 44 F.3d at 977). In fact, “title 19 makes c lear that Customs does not make any se ction 1514 antidumping ‘decisio ns,’” an d without a

section 1 514 decis ion, this c ourt lacks jurisdic tion under

28 U.S.C. § 1581(a). Mitsubishi Elecs. Am., Inc. 44 F.3d at 977. This court is without jurisdiction to hear Plaintiff’s AD claim, regardless of how it is construed. 14
B. T HE L IQUI DATION C LAIM ANF claims that Customs improperly liquidated the e ntry beca use Customs sent the notice of suspension to an incorrect address for Amlon. 15 The entry should, ther efore, be deemed liquidated at a duty-fr

ee rate. 16 See Pl.’s Br. 16-17. Pla intiff’s brief se ts forth mu

ltiple the ories to support its argument. ANF argue s that improper notice to Amlon invalidated the suspension andCourt No. 00-00022 Page 15

17 Notice of suspension If the liquidation of any

entry is suspended, the Sec retary shall by reg

ulation require that notice of the suspension be provided, in such manner a s the Secretary consider s appropr iate, to the importe

r of rec ord or dr

awback claimant , as the c ase may be, and to a

ny authorized ag ent and surety of such importer of record or drawba ck claima nt. 19 U.S.C. § 1504(c).

18 Suspensions occur “only whe n provided by law or

regulation, or when directed by the Commissione

r of Custom s” or whe

n requir ed by court or der. 19 C. F.R. § 159 .51; see § 159.12(a)(2). In c ontrast, extensions do not occur until Customs takes action by giving notice per 19 C.F.R. § 159.12(a) and (b). See also LG Elecs. U.S.A. , 21 CIT at 1429 n.15. that Custom s’ failur

e to corr ectly carry out its stat

utorily -mandat ed notice of suspen sion should in itself render the liquidation invalid. Likewise, ANF argues that Customs abused its discretion by liquidating the entry

despite an ongoing I TC investigation into the original AD determination.
Fo r r ea so ns se t f

or th be lo w, bo th th eo ri es fa il to in va li da te Cu st om s’ li qu id at io n o f t he en tr y. 1. Imperfect Notice

to Amlon Resulted in Harmless Error ANF claims that Customs’ suspension was invalid either because Amlon did not receive notice or because as a matter of law, Customs failed to adhe re to statutory mandate s for notice. 17
See Pl.’s Br. 16-17; see also 19 U.S.C. § 1504(c). However, failure to give notice of a suspension does not necessarily vitiate a suspension. See LG Elecs. U.S.A., Inc. , 21 CIT at 1429. 19 C.F.R. § 159.12(c) addresses the notice provision for suspensions and states that “[i]f the liquidation of an entry is suspended a s required by sta tute or court order, . . . the port director promptly shall notify

the importer . . . and his agent and surety . . . of the suspension.” 19 C.F.R. § 159.12(c ); see also 19 U.S.C. 1504(c). “‘[S]uspensions’ occur as soon as the
appropr iate Comme

rce det erminati on is made ” and do not requir e subsequ ent action by

Customs to occur because they

occur by ope

ration of law or court order. 18 LG Elecs. U.S.A., Inc. , 21 CIT at 1429 n.15.Court No. 00-00022 Page 16

Once a s uspension occurs, the statut

e requir es Customs t

o send susp ension not

ices to importers and sureties pursuant to 19 C.F.R. § 159.12 and 19 U.S.C. § 1504(c). See Fron tier Ins. Co. v. United States , 25 CI T 717, 724- 25, 155 F. Supp. 2d 779 , 786-87 (2001); Hanover Ins. Co. v. United States , 25 CIT 447, 456 (2001) (not reported in F . Supp.). However, the Court has not held that courts must reverse agency actions if procedural missteps occur. See Guangdong Chems. Imp. &Exp. Corp. v. United States , CIT S lip Op. 06- 13 (Jan. 25, 2006); Atteberry v. United States , 27 CIT __, __, 2003 WL 21748674, at *8-11 (2003) (not reported in F. Supp.). Procedu ral err ors by Customs ar

e harmle ss unless the errors are “prejudic ial to the p arty seeking to have the action declare d invalid.” Sea-Land Serv., Inc. v. United States , 14 CIT 253, 257, 735 F. Supp. 1059, 1063 (1990) (stating that Customs’ failure to include provisions required by law in denial letter to plaintiff was still harmless error because plaintiff did not plead any prejudice) (quotations & citation ommitted), aff’d and adopted , 923 F.2d 838 (Fed. Cir. 1991); see also Intercargo Ins. Co. v. United States , 83 F.3d 391, 394-95 (Fed. Cir. 1996) (“rule of prejudicial error” applies to defective notice of extension to plaintiff). ANF does not state with any particularity wha

t prejudice it suffered. See Pl.’s Br. 18. ANF pro vides no e

vidence to support

its claim that imperf

ect notic e to Amlon r

esulted in prejudic e to eithe

r Amlon or

itself. Therefor

e, Customs’ imperfe ct notice to Amlon amounts to harmless error b ecause

ANF has shown no pr

ejudicia l harm suf

fered by A

mlon or itse lf as a result of Customs’ procedural misstep. See Sea-Land Serv. , 14 CIT at 257. 2. Abuse of Discretion by Customs in Liquidating the Entry ANF also contends that Customs should not have liquidated the entry given the ongoing ITC investigation into the original AD de termination on ferrosilicon imports from China. See Pl.’s Br. 5-6, 10-15, 38-39, 44-45. While it is true that the original AD determination was underCourt No. 00-00022 Page 17

19 A classification protest qualifies as a valid categ ory of protests against Customs’ actions under 19 U.S.C. § 1514(a)(2). investigation by the I

TC when Commerce issued its instructions to Customs to liquidate the entry, Customs did not abuse its discretion in liquidating the entry on November 20, 1998, because it had no discretion in the matter. Customs’ liquidation role is “merely ministerial.” See Mitsubishi Elecs. Am., Inc. , 44 F.3d a t 977. “Com

merce c onducts the antidum ping duty investigation, calculates the antidumping margin, and issues the antidumping duty orde r. Commerce then directs Customs to collect the estimated duties.” Id. at 976 (citing 19 U.S.C. § 1673e(a)(1)). In thi s case, C ommerce

instructe d Customs to l iquidate the entr y in accord ance wi th 19 C.F.R. § 351.212( c), whic h calls for automa

tic liquida

tion of ADduties if n

o intere sted par

ty requests a review. See 19 C.F.R. § 351.212(c); Dep’t of Commerce Message No. 8257111; Def.’s Ex. 2. Customs merely followed Commerce ’s September 14, 1998, instructions. ANF has

no t p re se nt ed a v al id cl ai m t ha t C us to ms ab us ed it s d is cr et io n b y li qu id at in g t he en tr y. C. T HE C LASS IF ICATI ON C LAIM American National Fire also contends that Customs incorrectly classified the subject merchandise as ferrosilicon and should have cla ssified the merchandise under another cate gory which en joy s duty-free

treatme nt. 19 See Comp l. ¶¶ 3 1-38; Pl.’ s Br. 25 -31. T o brin g a classification claim before this Court, a claimant must have “inform[ed] Customs of the nature of the objections to the classification” at the administrative level in a protest. See Koike Aronson,
Inc. , 21 CI T at 1057. This requ irement a ims to: compel [the importer] to disclose the grounds of his objection at the time when he makes his protest . . . . Technical precision is not required; but the objections must be so distinct and specific, as, when fairly construed, to show that the objection taken a

t the tria l was at th e time in th e mind of the importe r, and tha t it was sufficient to notify the c ollector of its true nature and characte r to the end thatCourt No. 00-00022 Page 18

20 While both parties refer to the July 22, 1998, letter interc hangeably

as a supplement or amendment, the court will refer to it as a “supplement” whe n discussing it under 19 C.F.R. § 174.28 and an “amendment” when discussing it under 19 C.F.R. § 174.14. he might ascertain the precise fa cts, and have an opportunity to correct the mistake and cure the defect, if it was one which c ould be obviated. Wash. Intern. Ins. Co. v. United States , 16 C IT 599, 6 02 (19 92) (ci ting Davies v. Arthur , 96 U.S. 148, 151 (1878)) (brackets & ellipses in original) (not reported in F. Supp.). More specific ally , a valid protest mus t have “d istinctly and spec ifically

” set for th the dec ision as to which the protest is made, the category of merchandise affected by the decision, and the nature and reason of the objection. 19 U.S.C. § 1514(c). ANF’s classification claim in its original protest stated: “I MPROPER CLASSIFI

CATION: We protest the classification of all imported mer chandise. It should be classified as entered.” Pl.’s Ex. Q. Plaintiff claims that these two sentences “put classifica tion into play so it could

either a mend or su

pplement its initial c lassific ation cho ice (as entere d) in accord ance wi th 19 C.F.R . § 174.14 a

nd 19 C.F. R. § 174.28 .” Pl.’s B r. 37. Thi s skeleta l protest, though, does not meet the statutory requirements. It does not specify what Customs classification is being protested; in fact, the claim seems to arg ue that the original Customs classification was correct because it asserts that the merc handise “should be classified as entered.” I t fails to set forth any re ason for the objection or to state the nature of the objection. Ther e is also no statement about what Harmonized Tariff number ANF objec ts to or what the alleged correct classifi cation nu

mber shou

ld be. Be cause the protes t does not meet the r equirements in § 1514(c ), the pr

otest, by itself, is not valid. Conseque

ntly , ANF sta

tes that the court should consider its July 22, 1999, letter to Customs a supplement or, alternatively , an amendment that cures th e defec

ts in its orig

inal clas sificati on protes t. 20 See Pl.’s Br. 37.Court No. 00-00022 Page 19

21 E.g., A NF clai ms that an oral arg

ument it ma

de to Custom s on June 29, 1999, cou nts as a supplement. See Pl.’s Br. 37. 1. The Letter as a Supplement Unde r 19 C.F.R. § 174.28 ANF argues that it perfec ted its classification protest pursuant to 19 C.F.R. § 174.28 when it supplemented its protest to Customs with a letter dated July 22, 1999. See Pl.’s Br. 37. Section 174.28 allows for consideration of additional arguments, throug h supplements, in the review a nd disposit

ion of val id protes ts. The se ction re ads: In determining whe

ther to allow or deny

a protest filed within the time allowed, a reviewing officer may consider alternative claims and additional grounds or arguments submitted in writing by the protesting party

with respect to any decision which is the subject of a valid protest at any time prior to disposition of the protest . . . . 19 C.F.R. § 174.28 (emphasis added). Since ANF’s origina l classification protest did not meet the statutory require

ments for a valid protest, the letter - or any other claimed supplement for that

matter21 - cannot serve as a supplement. Under th ese cir cumstanc es, the c ourt can not exerc ise subject ma

tter juri sdiction over the c lassific ation cla im. 2. The Letter as an A

mendment Filed Under 19 C.F.R. § 174.14 In the alternative, ANF

attempts to cure the defects in its initial classification protest by stating that it amended the original claim with the letter pursuant to 19 C.F.R. § 174.14. See Pl.’s Br. 37. Under 19 C.F.R. § 174.14(a), a protest “may be amended at any

time prior to the expiration of the 90-day per iod within which such protest may be f iled determined in accordance with § 174. 12(e).”

19 C.F.R. § 174.14(a

). Section 174.12( e) rea

ds in pert inent par t, “[p]rote sts shall be filed . . . within 90 days af ter . . . [t]he date of mailing of notice of demand for pay ment against a bond in the case of a surety which has an unsatisfied legal claim under a bond w ritten by the surety .” Id. § 174.12(e).Court No. 00-00022 Page 20

22 Plaintiff states that it is “not asking the Court to toll the time to extent [sic] the jurisdict ional re quireme

nt of filin g a Prote st in 90 day

s, but rat her to toll the time in

which it had to provide the specifics Customs claims was missing in the initial Protest.” Pl.’s Br. 35. It is unclear what “spe cifics” Plaintiff refers to since nothing on the re cord demonstrates that Customs asked for missing information after ANF submitted its protest. The court assumes Plaintiff wants the court to toll the time ANF had to file an amendment. Since Customs sent ANF a demand for pay ment on March 19, 1999, the 90-day period began on that date, making June 17, 1999, the end of the 90-da y period. ANF ’s July 22, 1999, letter thus fails as an amendment to the protest because ANF submitted the letter after the 90-day period. Wi

thout a va lid amend ment to pe

rfect the faulty

April 27,1 999, clas sificati on protes t this Court has no jurisdiction to hear the claim. 3. Equitable Tolling to Allow the July 22, 1999, L etter as an Amendment Under 19 C.F.R. § 174.14 American National Fire also asks the court to equitably toll the 90-day period unde r 19 C.F.R. § 174.14 so t

hat its let ter from July 2 2, 1999, ma

y c ount as a v alid amen

dment. 22 Pl.’s Br. 36. A NF arg ues that the start da

te of the 90-day period in which to f

ile and a mend the protest should be tolled to May 12, 1999, beca use on that date, it received sufficient information from Customs to perfect its protest. See Pl.’s Br. 33-34. However, as Plaintif f corre ctly

notes, equitable tolling is not the norm, and courts allow it only in ra re instances. See Irwin v. Dep’t of Veteran A ffairs , 498 U.S. 89, 96 (1990). With respect to suits against the Government, the time limits imposed “involve a waiver of sover eign immu

nity ,” but re

main subje ct to the sa

me equita ble tolling

limitations

for priv ate parties. Id. ANF cites cases illustrating that courts rare ly employ equitable tolling, and most of the cases it cites actually

hold equitable tolling inapplicable. See id. at 97 (hol ding eq uitable tolling d oes not exte

nd to “g arden va

riety ” excusab le negl ect); Weddel v. Sec’ y of HHS , 100 F.3d 929, 931 (Fed. Cir . 1996) (s tating that equita ble tolling

does not a

pply to statute s of repo seCourt No. 00-00022 Page 21

23 The court believes that the fax cover sheet from Customs refer s to Message No. 8257111 from Commerce, which provided liquidation instructions for ferrosilicon from China. This document is three pages long and included a s Exhibit K in Plaintiff’s brief. because they cut off c ause of a

ction irr especti ve of time

of accr ual, and t hat equit able tolli ng is usually available unless statute indica tes contrary

intent by establishing outer da te for bringing action); U.S. JVC Corp. v. United States , 22 CIT 687, 697, 15 F. Supp. 2d 906, 915 (1998) (finding “presumption that the ninety -day per iod for filing a protest imposed by 19 U.S.C. § 1514(3) contains an equitable tolling exception has been rebutted by the language, structure, and purpose of 19 U.S.C. § 1514"), aff’d , 184 F.3d 1362 (Fed. Cir. 1999). ANF cites one case that supports its position. In Farrell Lin es, Inc. v. United States , the court equitably tolled the 90-da y period within which the plaintiff ha d to file a protest. 69 C.C.P.A. 1, 6 (1981). However, while not explicitly overrule d, the holding in Farrell Lines has been questioned. See U.S. JVC Corp , 22 CI T at 691 n. 7. More si gnific antly , the majority in Farrell Lines did not discuss the purpose underlying the 90-day pe

riod or its jurisdictional ramifications. Id. The court in U.S. JVC Corp. noted that courts faced with Farrell Lines have sought to clarify , limit, or find inapposite its holding. Id. (citations omitted). Given the high legal thresh

old to susta

in an equi table toll ing cla

im, ANF mu st demonstrate with specificity the facts that warrant resorting to this unorthodox measure. See
Irwin , 498 U.S. a

t 96. ANFprovided

only the cove r sheet to Customs’ c ommunica

tion with it on May 12, 1999, as evidenc e for equitably tolling to this date. That cover sheet indicates that the document which Customs provided was three pages long and entitled “Liquidation Instructions for dumping ca se A-570-819-000 Ferrisolicon [sic] from China (PRC).” 23 Pl.’s Ex. S.Court No. 00-00022 Page 22

ANF has not demons trated how it need ed this co mmunicati on to perf ect its classification protest. None of the documents that ANF ref erenced in its July 22, 1999, letter fell exclusively within Customs’ control. The classification claim in the letter r eferenced the HTSUS, a mill test certificate, a product invoice, and a letter fr om the end purchaser stating that the product c ould not be used for its intende d purcha se and wa s disposed of by landfill

. See Pl.’s Ex. BB. Because neither the letter nor Plaintiff’s br ief demonstrate why

Plaintiff needed Customs’ May 12, 1999, c ommunication to perfect its classification protest, ANF fails to mak e its c ase for equit able t olli ng. In add itio n, ass umin g arguendo that ANF required th e M ay 1 2, 19 99 , d oc um en ts fr om Cu st om s t o p er fe ct it s p ro te st , A NF st il l h ad 36 da ys before the June 17, 1999, deadline to submit the amendment. Thus, the court finds no reason for equi table toll ing to ap

ply to the cla ssificat

ion claim. Becau se the cl assifica tion prote st is invalid under 19 U.S.C. § 1514(a), the court lacks subject matter jurisdiction over the issue. See 28 U.S.C. § 1581(a).
D. I NTERE ST P AYMENTS Without support, American National Fire alleges that it “is not responsible for the payment of any

interest resulting from the liquidation of the subject entry at a value higher than asserted at the time of entry which may be owed to the Defendant.” Compl. ¶ 48. As Defendant points out, the terms of ANF’s continuous bond do not exclude interest. See Def.’s Br. 43; Def.’s Ex. 11. Under 28 U.S.C. § 2637(a), a c laimant must pay “all liquidated duties, charge s, or exactions” at t he time an

action in this Court is

commenc ed. 28 U.S .C. § 2637(a). Furthermore, charg es and exactions under § 2637(a) “include the assessment of interest on the late pay

ment of liquidated duties.” Syva Co. v. United States , 12 CIT 199, 205, 681 F . Supp. 885, 890 (1988 ); see Can. Fur Trappers Corp. v. United States , 884 F.2dCourt No. 00-00022 Page 23

24 There i s also the co nfusi ng ab initio nature of the antidumping rescission order from Commerce. It is unclear why Commerce even made an ab initio determination if on ly unliquidated entries would be affected since the re sult is no different from a normal rescission. For Commerce to order the liquidation of entries while at the same time investig ating an enormous price-fixing conspiracy concerning these entries leave s businesses such as the Plaintiff to conclude the Government unjustly enriches itself to the detriment of its citizens. 563, 566 (Fed. Cir. 1989). Thus, pay ment of interest is a prerequisite to invoke this Court’s jurisdiction, see 28 U.S.C. § 2637(a), and Plaintiff’s interest pay ment claim is without merit. Conclusion Althoug h the cour t is left wi

thout rec ourse to a

ddress A NF’s complaints, t

he court is nevertheless troubled by

Customs’ behavior throughout the administrative phase of this case. The facts of this case are a textbook example of why careful attention to importer’s claims at the administrative level are good policy . ANF’s attorney contacted Customs throughout the administr ative re view pro cess to g et guida nce on fi ling its c laims and r eceive d only

poorly written r esponses , which a

dded to AN

F’s con fusion be fore it f

inally sought r ecourse in this Court. 24 Nevertheless, mandatory jurisdictional requirements dictate that this Court grant the Government’s moti on for sum mary judgmen t and deny

Plaintiff ’s motion. A

judgmen t will be issued accordingly

.

July 18, 2006 /s/ Judith M. Barzilay Dated:_____________________

______________________ New York, NY Judge