Shima American Corp. v. United States

Slip Op. 06 – 153
UNITED STATES COURT OF INTERNATIONAL TRADE
SHIMA AMERICAN CORP.,
Before: Richard W. Goldberg,
Plaintiff, Senior Judge
v. Court No. 01-00966
UNITED STATES,
Defendant.
OPINION
[Plaintiff’s motion for summary judgment is granted in part and
denied in part. Defendant’s cross-motion for summary judgment
is granted.]
Dated: October 17, 2006
Barnes, Richardson, & Colburn (Brian Francis Walsh, Christine
Henry Martinez, Kazumune V. Kano) for Plaintiff Shima American
Corp.
Peter D. Keisler, Assistant Attorney General; Barbara S.
Williams, Attorney in Charge, International Trade Field Office,
Commercial Litigation Branch, Civil Division, U.S. Department of
Justice (James A. Curley), for Defendant United States.
GOLDBERG, Senior Judge: In this action reviewing a denial of a
protest under 19 U.S.C. § 1515, Plaintiff Shima American Corp.
(“Shima”) moves the court, under USCIT Rule 56, to enter summary
judgment in its favor, and to order the Defendant U.S. Customs
and Border Protection (“Customs”) to reliquidate the entries at
issue and to refund the excess duties paid by Shima. Shima
Court No. 01 - 00966 Page 2
bases its motion on the “deemed liquidation” provision of 19
U.S.C. § 1504(d), as amended in 1993. Customs also moves for
summary judgment, contending that while some of Shima’s entries
are subject to deemed liquidation, the rest are not.1
The Court concludes that the merchandise that Shima
imported between April 1, 1986 and March 31, 1987 is not deemed
liquidated by operation of law. See 19 U.S.C. § 1504(d) (Supp.
V 1984). Because Customs properly liquidated these entries on
August 25, 2000, the Court grants Customs’ summary judgment
motion and enters judgment in its favor.
I. BACKGROUND
Shima imports roller chain from Japan into the United
States. Between April 1, 1986 and March 31, 1987, Shima made
entries of roller chain through the Port of San Francisco (“the
1
Shima made entries through the Port of Chicago (“the Chicago
entries”) between the review period of April 1, 1996 to March
31, 1997. See Pl.’s Mot. Mem. Supp. Summ. J. 3 (“Pl.’s Br.”);
Def.’s Br. Partial Opp’n Pl.’s Mot. Summ. J. Supp. Cross-Mot.
Summ. J. 2 (“Def.’s Br.”). Customs concedes that the Chicago
entries were not liquidated within six months after Commerce’s
publication in the Federal Register of the final results of the
administrative review. Def.’s Br. 4. Customs further concedes
that these entries are deemed liquidated by operation of law in
accordance with 19 U.S.C. § 1504(d) (1994). Therefore, any
excess antidumping duties and interest assessed upon liquidation
of these entries should be refunded to Shima with interest on
the refund as provided by law. Id. The Court agrees, and a
judgment order shall be entered accordingly.
Court No. 01 - 00966 Page 3
San Francisco entries”). These entries were the subject of an
antidumping duty administrative review by the U.S. Department of
Commerce (“Commerce”). Liquidation of the entries was suspended
pending the final results of the administrative review. The
final results were published in the Federal Register on November
4, 1991. Commerce revised and republished the final results on
April 13, 1992. See Roller Chain, Other than Bicycle, from
Japan, 57 Fed. Reg. 12,800 (Dep’t of Commerce Apr. 13, 1992)
(amended final admin. review). Subsequently, Commerce issued
liquidation instructions on November 30, 2000, and Customs
liquidated the entries and assessed antidumping duties on
December 29, 2000.
After Customs liquidated the San Francisco entries, Shima
filed a protest under 19 U.S.C. § 1514 claiming that the entries
should have been liquidated at the cash deposit rate because
they were “deemed liquidated” under 19 U.S.C. § 1504(d).
Customs denied the protest, which prompted Shima to commence
this action pursuant to 19 U.S.C. § 1515.
II. JURISDICTION
The Court has exclusive jurisdiction over “any civil action
commenced to contest the denial of a protest, in whole or in
part, under section 515 of the Tariff Act of 1930.” 28 U.S.C. §
Court No. 01 - 00966 Page 4
1581(a) (2000). This action is timely and jurisdiction is
proper under 28 U.S.C. § 1581(a).
III. STANDARD OF REVIEW
This Court reviews protest denials de novo. See 28 U.S.C.
§ 2640(a)(1) (2000) (“The Court of International Trade shall
make its determinations upon the basis of the record made before
the court in . . . [c]ivil actions contesting the denial of a
protest.”); see also Rheem Metalurgica S/A v. United States, 20
CIT 1450, 1456, 951 F. Supp. 241, 246 (1996), aff’d 160 F.3d
1357 (Fed. Cir. 1998).
A motion for summary judgment shall be granted if “the
pleadings [and discovery materials] show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” USCIT R. 56(c).
In ruling on cross-motions for summary judgment, if no genuine
issue of material fact exists, the court must determine whether
a judgment as a matter of law is appropriate for either party.
See Sea-Land Serv., Inc. v. United States, 23 CIT 679, 684, 69
F. Supp. 2d 1371, 1375 (1999), aff’d 239 F.3d 1366 (Fed. Cir.
2001). Summary judgment is proper in this case because there are
no genuine issues of material fact.
Court No. 01 - 00966 Page 5
IV. DISCUSSION
A. Application of the 1993 Amendment to the San Francisco
Entries
This case turns on which version of 19 U.S.C. § 1504(d) is
applicable to the San Francisco entries. 19 U.S.C. § 1504describes the circumstances under which entries will be “deemed
liquidated” at the rate asserted by the importer at the time of
entry. If merchandise is not liquidated within one year of
entry, § 1504(a) provides that it will be “deemed liquidated.”
See 19 U.S.C. § 1504(a) (2000). If liquidation is suspended,
different time limits apply. In 1984, the statute provided as
follows:
(d) Limitation – Any entry of merchandise not liquidated
at the expiration of four years from the applicable
date specified in subsection (a) of this section,
shall be deemed liquidated at the rate of duty,
value, quantity, and amount of duty asserted at the
time of entry by the importer of record, unless
liquidation continues to be suspended as required by
statute or court order. When such a suspension of
liquidation is removed, the entry shall be
liquidated within 90 days therefrom.
19 U.S.C. § 1504(d) (Supp. V 1984). The ninety-day requirement
in the last sentence of this section is directory, not
mandatory. See Am. Permac, Inc. v. United States, 191 F.3d
Court No. 01 - 00966 Page 6
1380, 1382 (Fed. Cir. 1999) (citing Canadian Fur Trappers Corp.
v. United States, 884 F.2d 563, 566 (Fed. Cir. 1989)). As a
result, entries that are not liquidated within ninety days of
removal of suspension are not deemed liquidated. See id.According to the 1984 version of the statute, Customs had an
“unlimited amount of time in which to liquidate entries” if
removal of suspension occurred after the four-year time limit.
Koyo Corp. of U.S.A. v. United States, 29 CIT __, __, 403 F.
Supp. 2d 1305, 1308 (2005).
Section 1504(d) was amended by the 1993 North American Free
Trade Agreement Implementation Act. See Pub. L. No. 103-182, §
641, 107 Stat. 2057, 2204-05 (1993). The 1993 version provides
as follows:
(d) Removal of Suspension – 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 the removal 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) (emphasis added). The 1993
amendment removed both the four-year time limit and ninety-day
“directory” time limit. Instead, if liquidation of entries is
Court No. 01 - 00966 Page 7
suspended, Customs must liquidate those entries within six
months after it receives notice that suspension was removed.
Shima argues that the 1993 amendment applies in this case.
If Shima is correct, the San Francisco entries would be deemed
liquidated under § 1504(d) because Customs failed to liquidate
them within six months after Commerce lifted the suspension of
liquidation. However, the 1993 version of § 1504(d) would have
an impermissible retroactive effect if it is applied when the
(1) notice of the removal of suspension, (2) the running of the
six month period, and (3) the date of liquidation by operation
of law all have occurred prior to the effective date of the 1993
amendment. See Am. Int’l Chem., Inc., v. United States, 29 CIT
__, __, 387 F. Supp. 2d 1258, 1265 (2005) (citing Am. Permac,
191 F.3d 1380); accord U.S. Tsubaki, Inc. v. United States, 30
CIT __, __, Slip Op. 06-148 at 15 (Oct. 10, 2006).
In this case, suspension of liquidation of the San
Francisco entries was removed on April 13, 1992, when Commerce
published the revised final results of the administrative
review. See Int’l Trading Co. v. United States, 281 F.3d 1268,
1277 (Fed. Cir. 2002). This is the same day Customs received
notice of the removal.2 See id. Additionally, the running of
2
Shima alternatively argues that Customs received notice in 2000
when Commerce sent an e-mail concerning liquidation of the San
Court No. 01 - 00966 Page 8
the six-month period and the date of deemed liquidation
(pursuant to the 1993 amendment) occurred before the effective
date of the 1993 amendment, which was December 8, 1993.
Therefore, the application of the 1993 version of 19 U.S.C. §
1504(d) would have an impermissible retroactive effect in this
case.3
B. Application of the 1984 Version of 19 U.S.C. § 1504(d) to
the San Francisco Entries
The San Francisco entries were more than four years old
when Commerce removed the suspension of liquidation by
publishing the revised final results of the administrative
review on April 13, 1992. As discussed in Part IV.A., according
Francisco entries. This claim is without merit. Customs
received notice of the removal of suspension when Commerce
published the results of its final administrative review in the
Federal Register on April 13, 1992. In American International,
which Shima cites to support its argument, Commerce did not
publish the results of the final administrative review in the
Federal Register until September 10, 2001, which was after the
date that Customs received the e-mail notice. See 29 CIT at __,
387 F. Supp. 2d at 1262. In the case at bar, it is irrelevant
that Commerce may have sent an e-mail to Customs regarding
liquidation instructions because Customs had already received
notice of removal of suspension before the enactment of the 1993
amendment.
3
For a more in-depth discussion of the retroactivity analysis
concerning the 1993 version of 19 U.S.C. § 1504(d), see U.S.
Tsubaki, Inc. v. United States, 30 CIT at __, Slip Op. 06-148 at
8-15. The parties in Tsubaki made nearly identical arguments to
those made in this case, and each argument is addressed in more
detail in that opinion.
Court No. 01 - 00966 Page 9
to the 1984 version of § 1504(d), deemed liquidation is not
available to entries that are more than four years old at the
time suspension of liquidation is removed. In line with the
Federal Circuit’s holdings in American Permac and Canadian Fur
Trappers, the Court finds that the San Francisco entries are not
entitled to deemed liquidation under 19 U.S.C. § 1504(d) as
amended in 1984. See Am. Permac, 191 F.3d at 1382; Canadian Fur
Trappers, 884 F.2d at 566.
V. CONCLUSIONS
For the foregoing reasons, the Court denies in part Shima’s
motion for summary judgment and grants Customs’ cross-motion for
summary judgment. A judgment order will be issued in accordance
with these conclusions.
/s/ Richard W. Goldberg
Richard W. Goldberg
Senior Judge
Date: October 17, 2006
New York, New York