U.S. Tsubaki, Inc. v. United States

Slip Op. 06 – 148

UNITED STATES COURT OF INTERNATIONAL TRADE

U.S. TSUBAKI, INC.,
Before: Richard W. Goldberg,
Plaintiff, Senior Judge

v. Court No. 01-00519

UNITED STATES,

Defendant.

OPINION

[Plaintiff’s motion for summary judgment denied in part.
Defendant’s cross-motion for summary judgment is granted.]

Dated: October 10, 2006

Barnes, Richardson, & Colburn (Brian Francis Walsh, Christine
Henry Martinez, Kazumune V. Kano) for Plaintiff U.S. Tsubaki,
Inc.

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: This case involves an action to review

a denial of protest under 19 U.S.C. § 1515 (2000). Plaintiff

U.S. Tsubaki, Inc. (“Tsubaki”) moves the court, pursuant to

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 refund, with

interest, the excess duties paid by Tsubaki. Customs also moves

for summary judgment, contending that while five of Tsubaki’s
Court No. 01 - 00519 Page 2
entries are deemed liquidated by operation of law, the majority

of them are not. See Def.’s Br. Part. Opp’n Pl.’s Mot. Summ. J.

3 (“Def.’s Br.”).1

Five of the entries2 are deemed liquidated because Customs

waited longer than is permitted under 19 U.S.C. § 1504 (d)

(Supp. V 1984) to liquidate at the rate determined by the U.S.

Department of Commerce’s (“Commerce”) administrative review.

Tsubaki is therefore entitled to a refund of antidumping duties

paid on them. However, the Court agrees with Customs that with

the exception of these five entries, the entries at issue are not

deemed liquidated.

I. BACKGROUND

A. Procedural History

Tsubaki imports roller chain from Japan into the United

States. Pl.’s Mot. Mem. Supp. Summ. J. 3 (“Pl.’s Br.”). From

1979 to 1983, Tsubaki made fifty-six entries of roller chain

through various ports, which were subject to an antidumping duty

order. During this time, Commerce held two periods of

1
With respect to the five entries subject to deemed liquidation,
Customs concedes that Tsubaki is entitled to a refund of any
excess duty paid and interest assess upon liquidation, with
interest on the refund as provided by law. See Def.’s Br. 3.
2
These entries are No. 83-952658-0, which corresponds to protest
no. 3001-01-100030, and Nos. 83-676679-6, 83-677277-7, 83-
677819-5, and 83-677859-3, which correspond to protest no. 2720-
01-100107. See Def.’s Resp. Pl.’s Stmt. Mat. Facts ¶ 9; Def.’s
Br. 17-18.
Court No. 01 - 00519 Page 3
administrative review: (1) December 1, 1979 through March 31,

1981 (“the first period”); and (2) April 1, 1981 through

September 1, 1983 (“the second period”). Liquidation of the

entries was suspended pending the final results from the

administrative reviews. The results from the first period were

published in the Federal Register on December 4, 1986. See

Roller Chain, Other Than Bicycle From Japan, 51 Fed. Reg. 43,755

(Dep’t of Commerce Dec. 4, 1986) (final admin. review). The

weighted average final dumping margin for the roller chain at

issue during the first period was 0.07%. There was no cash

deposit required for entries from this period of review.

The results from the second period of review were published

in the Federal Register on May 8, 1987. See Roller Chain, Other

Than Bicycle, From Japan, 52 Fed. Reg. 17,425 (Dep’t of Commerce

May 8, 1987) (final admin. review). There was no cash deposit

required for the merchandise at the time of entry,3 but Commerce

subsequently determined that the weighted average dumping margin

over the period of review ranged from 0.18% to 0.36%. 52 Fed.

Reg. at 17,427.

Commerce issued liquidation instructions to Customs on

September 18, 2000 for both the first and second periods of

3
There was no cash deposit required for entries filed from April
1, 1981 through September 4, 1981. The cash deposit rate for
entries filed from September 5, 1981 through September 1, 1983
was 0%. Pl.’s Br. 4.
Court No. 01 - 00519 Page 4
review. Customs then liquidated these entries between October

2000 and February 2001. Thereafter, Tsubaki filed protests

under 19 U.S.C. § 1514 claiming that the entries at issue were

deemed liquidated by operation of law under 19 U.S.C. § 1504(d).

Tsubaki argued that Customs should have liquidated the entries

at 0%, as that was the cash deposit rate in effect at the time

of entry. The protest was denied, and Tsubaki subsequently

commenced this action.

B. Relevant Statutory History

The primary issue before this Court is which version of 19

U.S.C. § 1504(d) applies in this case. In 1978, Congress

promulgated its first statute governing “deemed liquidation.”

Customs Procedural Reform and Simplification Act of 1978, Pub.

L. No. 95-410, § 209, 92 Stat. 888, 902-03, 19 U.S.C. § 1504.

Congress made minor changes to this statute in 1984.4 Section

1504 generally provides that if merchandise is not liquidated

within one year from the date of entry, it is “deemed

liquidated” at the rate asserted at the time of entry by the

importer. See 19 U.S.C. § 1504(a) (Supp. V 1984). However,

4
Congress made a technical amendment to § 1504 by striking out
“his consignee, or agent” and replacing it with “of record” in
subsections (a), (b), (c) and (d). See Trade and Tariff Act of
1984, Pub. L. 98-573, § 191, 98 Stat. 2948, 2970. This was the
last amendment made to 19 U.S.C. § 1504 until the 1993
amendment, which is discussed in further detail below.
Court No. 01 - 00519 Page 5
special rules apply if liquidation has been suspended. From

1984 until 1993, § 1504(d) provided:

(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.

Id. § 1504(d) (emphasis added). At first glance it appears that

Customs must liquidate an entry within ninety days after

suspension of liquidation is removed, but courts have

interpreted the ninety-day time limit as directory, not

mandatory. See Am. Permac, Inc. v. United States, 191 F.3d

1380, 1382 (Fed. Cir. 1999) (“[E]ntries not liquidated within 90

days after removal of suspension are not deemed liquidated by

operation of law . . . .”)(citing Canadian Fur Trappers Corp. v.

United States, 884 F.2d 563, 566 (Fed. Cir. 1989)). Because

this time limit is discretionary,

[t]he statute had an unfortunate anomaly that made
deemed liquidation available for entries for which
removal from suspension occurred within the four-year
period, but not for entries for which removal from
suspension occurred even one day after the four-year
time limit. In those circumstances, Customs had an
unlimited amount of time in which to liquidate
entries.

Koyo Corp. of U.S.A. v. United States, 29 CIT __, __, 403 F.

Supp. 2d 1305, 1308 (2005).
Court No. 01 - 00519 Page 6
Section 1504(d) was amended by the North American Free

Trade Agreement Implementation Act in 1993. See Pub. L. No.

103-182, § 641, 107 Stat. 2057, 2204-05. 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). Unlike the

1984 version, there is no discretionary ninety-day time limit.

The 1993 version provides explicitly that merchandise is “deemed

liquidated” at the rate asserted at the time of entry if Customs

fails to liquidate an entry within six months after receiving

notification that the suspension was removed.

In light of the differences between the 1984 and 1993

versions of § 1504(d), Tsubaki claims that its merchandise

entered between 1979 and 1983 should be deemed liquidated as a

matter of law because Customs failed to liquidate that

merchandise within six months after suspension of liquidation

had been removed. Customs disagrees, and asserts that

application of the 1993 version in this case would have an

impermissible retroactive effect. Instead, Customs argues that
Court No. 01 - 00519 Page 7
the 1984 version’s ninety-day discretionary limit should govern.

Furthermore, as the 1984 version’s four-year time limit applies

to only five of the fifty-six entries at issue, the majority of

Tsubaki’s entries are not deemed liquidated by operation of law.

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. §

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. 1999).

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
Court No. 01 - 00519 Page 8
judgment as a matter of law is appropriate for either party.

Sea-Land Serv., Inc. v. United States, 23 CIT 679, 684, 69 F.

Supp. 2d 1371, 1375 (1999). Summary judgment is proper in this

case because there are no genuine issues of material fact.

IV. DISCUSSION

A. The 1993 Version Would Have an Impermissible Retroactive
Effect If Applied to These Facts

1. The Test for Retroactivity

In Landgraf v. USI Film Products, The Supreme Court

identified the proper analysis for determining whether a statute

should apply if it was enacted after the events giving rise to

the lawsuit. 511 U.S. 244, 280 (1994). A court first must

determine whether Congress expressly “prescribed the statute’s

proper reach.” Id. If Congress has not done so, the court must

decide whether the statute would “operate retroactively.” Id.

A statute’s application is not retroactive “merely because it is

applied in a case arising from conduct antedating the statute’s

enactment . . . .” Id. at 269. However, it is retroactive if

the new statutory provision “attaches new legal consequences” to

those events.5 Id. at 269-70.

5
The Landgraf Court provided some further guidance in deciding
whether a provision is retroactive:

The conclusion that a particular rule operates
"retroactively" comes at the end of a process of
judgment concerning the nature and extent of the
change in the law and the degree of connection between
Court No. 01 - 00519 Page 9
When a statute operates retroactively, “our traditional

presumption teaches that it does not govern absent clear

congressional intent favoring such a result.” Id. at 280; see

also Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 208

(1988) (“Retroactivity is not favored in the law.”). Therefore,

unless Congress clearly intended otherwise, a statute that

operates retroactively with respect to events that took place

before its enactment will not be applied.

It is not merely a “simple or mechanical task” to determine

when a statute is retroactive.6 Landgraf, 511 U.S. at 268. A

the operation of the new rule and a relevant past
event. Any test of retroactivity will leave room for
disagreement in hard cases, and is unlikely to
classify the enormous variety of legal changes with
perfect philosophical clarity. However, retroactivity
is a matter on which judges tend to have “sound
instincts,” . . . and familiar considerations of fair
notice, reasonable reliance, and settled expectations
offer sound guidance.

511 U.S. at 270 (citation omitted).
6
There are three situations where the application of a new
statute to past events is “unquestionably proper.” See
Landgraf, 511 U.S. at 273-75; see also Lindh v. Murphy, 521 U.S.
320, 341-43 (1997) (Rehnquist, C.J., dissenting). These three
categories are (1) procedural rules, (2) changes in law that
provide prospective forms of relief, and (3) jurisdiction-
stripping statutes. None of these categories apply here. First
of all, the 1993 amendment to § 1504(d) is clearly not a
jurisdiction-stripping statute. Additionally, it does not
provide any prospective relief. Instead, the remedy of “deemed
liquidation” under § 1504(d) is “quintessentially backward
looking.” See Landgraf, 511 U.S. at 282. Because the 1993
amendment attaches a new legal burden (i.e., deemed liquidation)
Court No. 01 - 00519 Page 10
statute operates retroactively if it would (1) impair the rights

a party possessed when he acted, (2) increase a party’s

liability for past conduct, or (3) impose new duties with

respect to transactions already completed. See id. at 280. In

deciding whether the application of legislation would be

retroactive, a court must look at the “interrelationship between

the new law and past conduct.” Travenol Labs., Inc. v. United

to conduct that has already occurred, the statute is
retroactive. See id.
Finally, the 1993 version of § 1504(d) does not fall within
the category of new procedural rules that can be applied to past
conduct and pending cases. It is true that because rules of
procedure “regulate secondary rather than primary conduct,” they
generally do not operate retroactively. Id. at 275. A
procedural rule is not retroactive if it does not “impose an
additional or unforeseeable obligation” upon a party. Id. at
278 (quoting Bradley v. Sch. Bd. of Richmond, 416 U.S. 696, 721
(1974)). However, in this case, § 1504(d) governs how long
Customs can wait before it must liquidate entries before they
are “deemed liquidated” by operation of law. Customs’ failure
to liquidate Tsubaki’s entries within six months after
suspension of liquidation was removed is the conduct that is
squarely at issue in this lawsuit. Furthermore, if the 1993
version of § 1504(d) applied in this case, it would impose an
unforeseeable obligation on Customs. Under the 1984 version of
the law, Customs suffered no consequences if it failed to
liquidate entries that were at least four years old after the
suspension of liquidation was removed. See supra Part I.B. By
contrast, under the 1993 statute, any entries, regardless of
age, would be deemed liquidated if Customs failed to liquidate
them within six months of receiving liquidation instructions
after removal of suspension. Customs properly liquidated all
but five of the entries according to the 1984 version of the
statute. Because the 1993 version would impose an unforeseeable
legal obligation on Customs, it would operate retroactively in
this case. Cf. Landgraf, 511 U.S. at 275 n.29 (“A new rule
concerning the filing of complaints would not govern an action
in which the complaint had already been properly filed under the
old regime . . . .”).
Court No. 01 - 00519 Page 11
States, 118 F.3d 749, 752 (Fed. Cir. 1997). If the conduct that

“triggers” a particular statute’s application occurs before the

law’s effective date, the statute’s application to that conduct

would be retroactive. See id. (citation omitted). To select

the appropriate triggering event, the Court will examine at

which point in the importation process the 1993 version 19

U.S.C. § 1504(d) becomes relevant.

2. Application of the Test for Retroactivity

In a case that is exactly on point, the U.S. Court of

Appeals for the Federal Circuit (“Federal Circuit”) stated that

“[t]he ‘triggering event’ for the running of the 6-month time

period under [the 1993 version of 19 U.S.C. §1504(d)] is the

lifting of the suspension on liquidation . . . .” Am. Permac,

191 F.3d at 1381. Prior to 1993, Customs faced very different

legal consequences if it failed to liquidate within six months

after suspension of liquidation was removed. See id. Under the

older statute, Customs was under no statutory mandate to

liquidate entries within a particular time period. Instead,

Congress merely suggested that Customs liquidate the relevant

entries within ninety days. Even if ninety days passed after

removal of the suspension, the entries would not be deemed

liquidated.7 In contrast, after the 1993 amendment, Customs is

7
As discussed above, if liquidation was suspended, “deemed
liquidation” would only occur if (1) the entries were less than
Court No. 01 - 00519 Page 12
required to liquidate entries within six months after suspension

has been removed. If Customs fails to do so, the entries will

be deemed liquidated. This mandated deemed liquidation is a new

legal consequence of removal of suspension that was not present

under the 1984 version.

The suspension on liquidation of the two sets of Tsubaki’s

entries was lifted in December 1986 and May 1987, when Commerce

published the results of its administrative reviews. See Int’l

Trading Co. v. United States, 24 CIT 596, 606, 110 F. Supp. 2d

977, 986 (2000), aff’d 281 F.3d 1268, 1275 (Fed. Cir. 2002)

(suspension removed when final results published by Commerce).

As the suspension was removed well before the 1993 amendment to

§ 1504(d), the 1993 version would have a retroactive effect in

this case. As there is no evidence that Congress contemplated

that the statute apply retroactively, the presumption against

retroactivity requires that the 1993 amendment does not apply to

these facts. See Am. Permac, 191 F.3d at 1381-82 (citing Plaut

v. Spendthrift Farm, Inc., 514 U.S. 211, 237 (1995)).

Citing American International, Tsubaki argues that the

statement by the American Permac court identifying the relevant

“triggering event” as the removal of suspension is a dictum.

four years old, (2) suspension of liquidation was removed, and
(3) Customs failed to liquidate within that same four-year
period. 19 U.S.C. § 1504(d) (Supp. V 1984); see Koyo, 29 CIT at
__, 403 F. Supp. 2d at 1308.
Court No. 01 - 00519 Page 13
The American International court described American Permac’s

narrow holding as follows: “It [is] impermissible to apply §

1504(d) as amended in 1993 when the removal of suspension, the

running of the six-month period, and the date of liquidation by

operation of law all 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). Unlike in American

Permac, there was no retroactive effect in American

International because all the relevant events occurred after the

1993 amendment. Significantly, in the present case, the removal

of suspension, the running of the six-month period, and the date

of liquidation by operation of law all occurred prior to

December 8, 1993. Therefore, even under the narrower American

Permac holding restated in American International, the 1993

version would operate retroactively if applied to Tsubaki’s

entries.8

8
Tsubaki argues that this case “parallels” that of Fujitsu
General, in which the court applied the 1993 version of §
1504(d). Pl.’s Br. 14 (citing Fujitsu Gen. Am., Inc. v. United
States, 24 CIT 733, 110 F. Supp. 2d 1061 (2000), aff’d 283 F.3d
1364 (Fed. Cir. 2002)). That case involved entries which took
place between 1986 and 1988. The importer challenged the final
results of an administrative review, which was completed in
1991. The Federal Circuit ruled that suspension of liquidation
was not removed until 1996, when the time to petition the
Supreme Court expired. In contrast, the suspension of
liquidation of Tsubaki’s entries was removed when the final
results of the administrative review were published, in 1986 and
1987, well before 1993. Tsubaki did not challenge the results
of the final administrative review, and therefore no injunction
Court No. 01 - 00519 Page 14
With the support of Travenol, Tsubaki asserts that the

triggering event should be Customs’ liquidation of the entries.

However, Tsubaki’s reliance on Travenol is misplaced. To begin

with, the provision at issue in Travenol was 19 U.S.C. §

1505(c), which is not the statute at issue in the present case.

Section 1505(c) relates to the interest that is owed for either

an underpayment or overpayment of estimated duties. See

Travenol, 118 F.3d at 753. The Travenol court held that the

triggering event for § 1505(c) is the liquidation or

reliquidation of an entry because § 1505(c) “comes into play

only after there has been a determination that interest is due .

. . .” Id. Because Customs cannot assess interest until after

an entry is liquidated, liquidation must occur before Customs

can decide how much an importer owes. Under such circumstances,

it is clear that liquidation sets in motion, or triggers, the

process by which the rate of interest is determined.

In this case, the issue is not the rate of interest but at

what rate goods can be liquidated after suspension has been

removed. Under the 1993 version of § 1504(d), that rate is

determined by reference to the date Customs received notice that

suspension was removed. Therefore, it is impossible for

liquidation, namely the event which concludes the process, to be

to continue suspension of liquidation was requested or issued
after publication of the final results of the administrative
reviews.
Court No. 01 - 00519 Page 15
the triggering event. Under the circumstances of this case, the

event that began the running of the six-month period was the

date Commerce published the final results of the administrative

review, thereby lifting the suspension of liquidation and

providing Customs with notice of the same. See Int’l Trading

Co. v. United States, 281 F.3d 1268, 1275 (Fed. Cir. 2002)

(“Int’l Trading II”) (notice requirement of § 1504(d) as amended

in 1993 is met when Commerce publishes the final results of the

administrative review in the Federal Register).

The Court therefore holds that the application of the 1993

version of § 1504(d) would have an impermissible retroactive

effect if applied to a case where the following events have

occurred before the enactment of the 1993 amendment: (1)

Commerce published the final results of its administrative

review (thereby simultaneously lifting the suspension of

liquidation and giving notice to Customs) and (2) the six-month

time limit imposed by the 1993 amendment has run. Therefore,

the 1984 version of 19 U.S.C. § 1504(d) must apply to these

facts.

B. Pursuant to the 1984 Version of 19 U.S.C. § 1504(d), the
Entries at Issue Are Not Entitled to Deemed Liquidation

Prior to 1993, the first sentence of § 1504(d) provided

that if an entry is not liquidated within four years from the

date of entry, it will be “deemed liquidated” unless the
Court No. 01 - 00519 Page 16
liquidation is suspended. See 19 U.S.C. § 1504(d) (Supp. V

1984). In this case, all but five of Tsubaki’s entries were

under suspension for longer than four years. Because the

suspension of liquidation orders were not removed until after

the four-year time limit expired, the language in the first

sentence of § 1504(d) simply does not apply in this case. See

Canadian Fur Trappers, 884 F.2d at 565-66; Dal-Tile Corp. v.

United States, 17 CIT 764, 769, 829 F. Supp. 394, 398 (1993),

aff’d, 26 F.3d 139 (Fed. Cir. 1994) (merchandise under

suspension more than four years after date of entry falls under

exception to the four-year time limit).

The second sentence of § 1504(d) contains a specific

exception to the four-year time limit for liquidation suspended

either by statute or by court order. It provides that such

entries “shall be liquidated within 90 days [after the

suspension of liquidation is removed].” 19 U.S.C. § 1504(d)

(Supp V 1984). As discussed above, this language was directory,

rather than mandatory. Even if Commerce removes the suspension

of liquidation, and ninety days pass, the entries are not deemed

liquidated as a matter of law. See Canadian Fur Trappers, 884

F.2d at 566.

Tsubaki’s merchandise entered more than four years before

the suspension of liquidation was removed in 1986 and 1987.

Therefore, Tsubaki’s entries are not liquidated as a matter of
Court No. 01 - 00519 Page 17
law because they fall under the 1984 version of § 1504(d), which

does not mandate deemed liquidation on these facts. In line

with Canadian Fur Trappers and American Permac, the Court finds

that none of Tsubaki’s contested entries are entitled to deemed

liquidation under 19 U.S.C. § 1504(d) (Supp. V 1984).

C. Five of Tsubaki’s Entries Are “Deemed Liquidated” under the
1984 version of § 1504(d)

Entry Nos. 83-952658-0, 83-676679-6, 83-677277-7, 83-

677819-5, and 83-677859-3 were made between May 23 and July 25,

1983. The removal of suspension of liquidation of these entries

occurred on May 8, 1986, when Commerce published the final

results of its administrative review. Because four years did

not pass between the date of entry and the date suspension of

liquidation was removed, the language in the first sentence of §

1504(d) (Supp V 1984) applies. As Customs properly concedes,

these entries are therefore deemed liquidated by operation of

law. See Nunn Bush Shoe Co. v. United States, 16 CIT 45, 46-48,

784 F. Supp. 892, 893-94 (1992).

D. The Existence of an E-mail Sent by Commerce to Customs on
June 9, 2000 Is Not Relevant

Finally, Tsubaki makes the alternative argument that

because Customs allegedly received e-mail notice from Commerce

regarding the lifting of suspension after the effective date of
Court No. 01 - 00519 Page 18
§ 1504(d) (Supp. V 1993), the 1993 amendment applies.9 Tsubaki

alleges that that Commerce e-mailed liquidation instructions to

Customs on February 2, 2000, well after the effective date of

the 1993 amendment. Pl.’s Br. Opp. Def.’s Cross Mot. Summ. J.

11 (“Pl.’s Br. Opp.”). Tsubaki reasons that because Customs did

not receive e-mail instructions in this case until 2000,

adequate notice did not occur until that time. Id. (citing Am.

Int’l Chem., 29 CIT at __, 387 F. Supp. 2d at 1269-70 (ruling

that liquidation instructions e-mailed from Commerce to Customs

constituted adequate notice that the suspension of liquidation

had been lifted)).

The problem with Tsubaki’s argument, however, is that in

American International, Commerce e-mailed liquidation

instructions to Customs before it published the final results of

the administrative review in the Federal Register. Id. at 1261.

The issue in that case was whether, absent such publication, e-

mail instructions constituted adequate notice. That court ruled

that it did. Id. at 1269-70. In the case at hand, however, the

results of the administrative review were published long before

9
The existence of this e-mail is disputed by the parties. See
Def.’s Reply 7 (“The plaintiff offers no proof of the contents
of the e-mail, or that Commerce sent the e-mail, or that Customs
received the e-mail.”), but as it is irrelevant to this lawsuit,
it is not a genuine issue of material fact. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only disputes
over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary
judgment.”).
Court No. 01 - 00519 Page 19
Commerce allegedly sent Customs liquidation instructions via e-

mail. See Pl.’s Br. Opp. 2 (stating that the final results of

the administrative reviews were published in 1986 and 1987, and

the e-mail was sent to Customs in 2000). Notice is effected

upon publication in the Federal Register. See Fujitsu Gen. Am.,

Inc., 283 F.3d at 1381-82; Int’l Trading II, 281 F.3d at 1275-

76; Am. Int’l Chem., 29 CIT at __, 387 F. Supp. 2d at 1267. The

mere fact that Customs did not receive an e-mail until 2000 does

not render meaningless the publication of final results in 1986

and 1987. See Am. Int’l Chem., 29 CIT at __, 387 F. Supp. 2d at

1267 (publication is the “hallmark of proper notice under §

1504(d)”). It is therefore irrelevant that Commerce may have

sent e-mail liquidation instructions in 2000.

V. CONCLUSIONS

For the foregoing reasons, the Court denies in part

Tsubaki’s motion for summary judgment and grants Customs’ motion

for summary judgment. Pursuant to the 1984 version of 19 U.S.C.

§ 1504(d), fifty-one of the entries at issue in this case are

not deemed liquidated by operation of law because the four-year

time limit did not apply. Five of the entries are deemed

liquidated because less than four years had passed between the

date of entry and the date the suspension of liquidation was

removed. These five entries should be reliquidated by Customs

as entered, and any excess antidumping duties and interest
Court No. 01 - 00519 Page 20
assessed upon liquidation should be refunded to Tsubaki with

interest on the refund as provided by law. Judgment shall be

entered accordingly.

/s/ Richard W. Goldberg
Richard W. Goldberg
Senior Judge

Date: October 10, 2006
New York, New York