American National Fire Insurance v. United States

Slip Op. 06-107

UNITED STATES COURT OF INTERNATIONAL TRADE

____________________________________
:
AMERICAN NATIONAL FIRE :
INSURANCE COMPANY, :
:
Plaintiff, :
: Before: Judith M. Barzilay, Judge
v. : Court No. 00-00022
:
UNITED STATES, :
:
Defendant. :
____________________________________:

OPINION

[Plaintiff's motion for summary judgment is denied, and Defendant's motion for summary
judgment is granted.]

Dated: July 18, 2006

Law Offices of Barry M. Boren (Barry M. Boren) for Plaintiff American National Fire Insurance
Co.

Peter D. Keisler, Assistant Attorney General; (James A. Curley), Civil Division, Commercial
Litigation Branch; (Barbara S. Williams), Attorney in Charge, International Trade Field Office;
Aimee Lee, International Trade Field Office; John J. Mahon, International Trade Field Office,
United States Department of Justice; Yelena Slepak, Office of Assistant Chief Counsel,
International Trade Litigation, United States Customs and Border Protection, of counsel, for
Defendant United States.

BARZILAY, JUDGE: This case recites the unhappy history of a small American

importer and its surety while it attempted to grow its business by importing a product it had never

imported before to serve what it hoped would be an increasing market. Instead, it found the

transaction subject to the confusing interactions of three government agencies regulating

international trade. Unfortunately, the importer’s efforts ran afoul of an unusually complicated

antidumping case - one whose order was ultimately revoked by the Department of Commerce
Court No. 00-00022 Page 2

(“Commerce”) because of the criminal behavior of some United States industry executives.

This relatively simply matter could have been resolved at several points in the

administrative proceedings leading up to the filing of the summons and complaint in this Court.

Plaintiff surety and its lawyer valiantly attempted to get action 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 parties

were unable to reach. As a result, the Government has unjustly enriched itself at the expense of

the surety, and the court cannot undo the damage, as will be explained.

Plaintiff American National Fire Insurance Company (“ANF”) has filed suit against

Customs’ denial of its timely-filed protest against 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. (“Amlon”), 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. Both parties have filed for

summary judgment. For the reasons discussed below, the court must grant Defendant’s motion

for summary judgment and deny Plaintiff’s motion for summary judgment.

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 Commerce

1
Effective March 1, 2003, the United States Customs Service was renamed the Bureau of
Customs and Border Protection of the United States Department of Homeland Security.
Court No. 00-00022 Page 3

Jan. 21, 1993). On March 11, 1993, Commerce issued an AD order on imports of ferrosilicon

from China, with an accompanying AD duty rate of 137.73% ad valorem. Antidumping 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 from China was entered at the

port of Seattle. See Pl.’s Ex. B. The Entry Summary form described the product as “Ferroalloys,

Other” and classified it under the corresponding Harmonized Tariff Schedule of the United States

(“HTSUS”) subheading 7202.29.0050. See Pl.’s Ex. B. Ferrosilicon classified under this

provision was subject to the March 11, 1993, AD order. For reasons that are unclear, Customs

did not assess the 137.73% duty at the time of entry. 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 Customs sent the fax after attempts to contact Amlon through the mail failed because

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 years before events surrounding the

instant case began.2 On March 21, 1998, Customs sent Amlon and ANF notice that liquidation

of the entry was being suspended. Customs’ records show that it mailed Amlon’s notice again to

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 address as early as
1996, when ANF filed the original Customs bond with Customs, and because Amlon’s
correspondence with Customs used Amlon’s correct address, as did the Entry Summary form for
the entry at issue. See Pl.’s Br. 7-8; Pl.’s Ex. G.
Court No. 00-00022 Page 4

the outdated address, though it mailed ANF’s notice to the correct 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 Information. 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 March 1, 1997, and February 28,

1998, in accordance with the AD order. Dep’t of Commerce Message No. 8257111; Def.’s Ex.

2. Nine days later, Customs issued a Notice of Action3 to Amlon demanding that Amlon submit

a statement certifying 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.

3
The Notice of Action was a Customs Form 29. 19 C.F.R. § 152.2 states that notification to
importers of increased duties shall be sent using Customs Form 29 and reads in pertinent part:

If the port director believes that the entered rate or value of any merchandise 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, specifying 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 days from the date of mailing of
such notice unless in the judgment of the port director there are compelling
reasons that would warrant such action.

19 C.F.R. § 152.2.
Court No. 00-00022 Page 5

On March 19, 1999, Customs made a demand on ANF to pay the AD duties assessed

against the entry. See Def.’s Br. 2. On April 27, 1999, ANF filed a timely protest against this

demand for payment, 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 (“ITC”)

investigation into the original AD order on ferrosilicon from China. See Pl.’s Br. 11-12. In 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 resolve 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 merchandise 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 sending Customs a supplement to its protest. See Pl.’s Ex. BB. On

August 4, 1999, Customs sent ANF a letter rejecting the supplement as untimely. See Pl.’s Ex.

Z. This letter explicitly informed Plaintiff that its protest had been denied.

Meanwhile, the ITC decided to reexamine its original injury determination and issued a

notice on May 20, 1998, requesting comments for a review of AD duties on imports of

ferrosilicon in light of the “revelation of a nationwide ferrosilicon price-fixing conspiracy

maintained by major U.S. ferrosilicon producers.” Ferrosilicon from Brazil, China, Kazakstan,

Russia, Ukraine, and Venezuela, 63 Fed. Reg. 27,747-01, 27,747 (Int’l Trade Comm’n May 20,

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” checked as denied.
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 rescinded the AD order on ferrosilicon from China on September 21,

1999. See Ferrosilicon from Brazil, Kazakhstan, People’s Republic of China, Russia, Ukraine,

and Venezuela, 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 effective 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 Commissioner of Customs of Regulations and Rulings, to discuss ANF’s options in

pursuing its protest. See Pl.’s Br. 14-15. Per Mr. Seidel’s recommendation, ANF sent

documents to various Customs officials on September 28, October 25, and November 9, 1999, to

continue its attempt to have Customs reconsider the assessed AD duties. See Pl.’s Br. 39; Pl.’s

Exs. FF, GG, HH. In December 1999, Mr. Seidel informed ANF that Customs would not change

its denial of ANF’s protest and that ANF should seek recourse 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, depositions, 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 and that the moving party is entitled to a judgment as a matter of law.” USCIT R. 56(c); see
Court No. 00-00022 Page 7

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); 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 material 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 whether there are any

factual disputes that are material to resolution of the action. The court may not resolve or try

factual issues on a motion for summary judgment.’” Sea-Land Serv., Inc. v. United States, 23

CIT 679, 684, 69 F. Supp. 2d 1371, 1375 (1999) (quoting 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 contests Customs’ denial of its April 27, 1999, protest5 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 claim under § 1581(a), the party filing suit must have filed a valid protest against 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 must set forth distinctly and specifically – (A) each decision described in
subsection (a) of this section as to which protest is made; (B) each category of
merchandise affected by each decision set forth under paragraph (1); (C) the
nature of each objection and the reasons therefor; and (D) any other matter
required by the Secretary by regulation.

5
Neither party disputes that the protest was filed in a timely manner.
6
Section 1581(a) grants this Court jurisdiction over valid protests to Customs and reads, “[t]he
Court of International Trade shall have exclusive jurisdiction of 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
[19 U.S.C. § 1515].” 28 U.S.C. § 1581(a).
Court No. 00-00022 Page 8

19 U.S.C. § 1514(c)(1). In addition, the protest must

contain the following information:
(1) The name and address of the protestant . . . and the name and address of his
agent or attorney if signed by one of these;
(2) The importer number of the protestant. . . ;
(3) The number and date of the entry;
(4) The date of liquidation of the entry . . . ;
(5) A specific description of the merchandise affected . . . ;
(6) The nature of, and justification for the objection set forth distinctly and
specifically with respect to each category, payment, claim, decision, or refusal;
(7) The date of receipt and protest number of any protest previously filed that is
the subject of a pending application for further review pursuant to Subpart C of
this part and that is alleged to involve the same merchandise and the same
issues . . . ;
(8) If another party has not filed a timely protest, the surety’s protest 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 knowledge, as to whether the
entry is the subject of drawback, or whether the entry has been referenced on a
certificate of delivery or certificate of manufacture and delivery so as to enable a
party to make such 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 claim.” 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 improperly assessed AD duties because Customs

liquidated the entry despite ANF’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, ANF

claims that Customs’ liquidation was improper because Customs did not provide Amlon with
Court No. 00-00022 Page 9

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 payment 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 particular

type of case.” Erwin Chemerinsky, Federal Jurisdiction 259 (4th ed. 2003). A court must have

subject matter jurisdiction over a claim “because it involves a court’s power to hear a case, [and]

can never be forfeited or waived.” United States v. Cotton, 535 U.S. 625, 630 (2002).

Moreover, courts “have an independent obligation to determine whether subject-matter

jurisdiction exists, even in the absence of a challenge from any party.” Arbaugh v. Y&H Corp.,

126 S.Ct. 1235, 1244 (2006) (citing 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).8

7
Notice of suspension. If the liquidation of an entry is suspended as required by
statute or court order, as provided in paragraph (a)(2) of this section, the port
director promptly shall notify the importer or the consignee and his agent and
surety on Customs Form 4333-A, appropriately modified, of the suspension.

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, 2632(a)-(c); USCIT R. 3(a); Autoalliance Int’l, Inc. v. United States, 29 CIT __, 398 F.
Supp. 2d 1326 (2005).
Court No. 00-00022 Page 10

A. THE ANTIDUMPING CLAIM

American National Fire asserts that this Court has jurisdiction over its antidumping claim

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 decision of Customs at the administrative level. See

Juice Farms, Inc., 68 F.3d at 1345-46. The vague language in Plaintiff’s complaint leaves the

exact nature of the AD claim unclear and could be interpreted as either a challenge to the

calculation of duties or, alternatively, as a challenge to the collection of duties.9 Plaintiff’s

Complaint asserts that ANF filed a timely protest against the “payment of antidumping duties

assessed against Amlon” and that ANF is not responsible for the duties since “the ITC was

reconsidering its assessment of antidumping duties on ferrosilicon imports from China.” Compl.

¶¶ 11, 26. The former interpretation results in an invalid protest because calculation of duties in

9
The imprecise use of the word “assessment” by the parties throughout this case causes
confusion with respect to the nature of the AD claim. Plaintiff states in its complaint 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 claim because Plaintiff protests the “rate and amount of duties chargeable” 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 duties. However, Defendant in its brief interprets Plaintiff’s use of the word “assessment”
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. § 1673e addresses the assessment of duties and states that Commerce “directs customs
officers to assess” in the sense that “assessment” means 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 investigation, calculates the antidumping margin, and 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 Dictionary 116 (6th ed. 1997). Defendant’s characterization of Plaintiff’s
claim as a protest against the calculation of duties seems 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.
Court No. 00-00022 Page 11

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

protestable by statute. In either case, this court lacks subject matter jurisdiction over the 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 “calculation”

of AD duties.10 See Def.’s Br. 11-12. A challenge 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). If 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) grants this Court jurisdiction over final determinations by

Commerce in antidumping procedures, which includes the calculation of AD duties. See 19

U.S.C. § 1516a(a)(2)(B); Shinyei Corp. of Am. v. United States, 355 F.3d 1297, 1304 (Fed. Cir.

2004).

10
ANF’s AD protest to Customs read, “IMPROPER APPRAISEMENT: We protest the
appraisement and duty assessment on all merchandise involved in the subject entry. The
merchandise should have been appraised at the invoiced unit values or at values less than the
liquidated values in accordance with the appraisement statutes and regulations.” Pl.’s Ex. Q.
11
In relevant part, 19 U.S.C. § 1673e(a)(1) states that Commerce “directs customs officers to
assess . . . antidumping dut[ies].” 19 U.S.C. § 1673e(a)(1); see also Mitsubishi Elecs. Am., Inc.,
44 F.3d at 976 (describing § 1673e(a)(1): “Commerce conducts the antidumping duty
investigation, calculates the antidumping margin, and issues the antidumping duty order.
Commerce then directs Customs to collect the estimated duties.”)
12
“The Court of International 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).
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 requested such

review. Furthermore, since this type of calculation by Customs is not included in the protestable

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

Plaintiff’s AD claim may refer instead to Customs’ liquidation of the ferrosilicon entry,

which affected the collection of the AD duties. See Pl.’s Br. 38-39. Unlike a determination 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.

However, while entry liquidation is a Customs function, it is not always a Customs decision. Id.;

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

involving the application of pertinent law and precedent to a set of facts . . . . Customs must

engage in some sort of decision-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 of
Court No. 00-00022 Page 13

Customs “decisions” that a protestant can challenge.13 The seven categories listed in § 1514(a)

are exclusive, and if “Customs’ underlying decision does not relate to any of these seven

categories, the court may not exercise § 1581(a) jurisdiction over an action contesting Customs’

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 ‘all charges or exactions of whatever character within the jurisdiction of the

Secretary of the Treasury’” under 19 U.S.C. § 1514(a)(2) and (3). Pl.’s Br. 38. Customs’ 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 at

13
The relevant language from § 1514(a) states:

[A]ny clerical error, mistake of fact, or other inadvertence . . . adverse to the
importer, in any entry, liquidation, or reliquidation, and, decisions of the Customs
Service . . . as to –
(1) the appraised value of merchandise;
(2) the classification and rate and amount of duties chargeable;
(3) all charges or exactions of whatever character within the jurisdiction of the
Secretary of the Treasury;
(4) the exclusion of merchandise from entry or delivery or a demand for redelivery
to customs custody under any provision 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 refusal to reliquidate an entry under subsection (d) of section 1520 of this
title;

shall be final and conclusive upon all persons (including the United States and any
officer thereof) unless a protest is filed in accordance with this section, or unless a
civil action contesting the denial of a protest, in whole or in part, is commenced in
the United States Court of International Trade . . . .

19 U.S.C. § 1514(a).
Court No. 00-00022 Page 14

977; LG Elecs. U.S.A., Inc. v. United States, 21 CIT 1421, 1425, 991 F. Supp. 668, 673 (1997).

Customs liquidates an entry to collect antidumping duties per Commerce’s instructions, it

possesses no discretion in the matter. See Hynix Semiconductor Am., Inc. v. United States, 30

CIT __, __, 414 F. Supp. 2d 1317, 1327 (2006) (citing Mitsubishi Elecs. Am., Inc., 44 F.3d at

977). In fact, “title 19 makes clear that Customs does not make any section 1514 antidumping

‘decisions,’” and without a section 1514 decision, this court lacks jurisdiction 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. THE LIQUIDATION CLAIM

ANF claims that Customs improperly liquidated the entry because Customs sent the

notice of suspension to an incorrect address for Amlon.15 The entry should, therefore, be deemed

liquidated at a duty-free rate.16 See Pl.’s Br. 16-17. Plaintiff’s brief sets forth multiple theories to

support its argument. ANF argues that improper notice to Amlon invalidated the suspension and

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, referred to mistakes of fact
made by Customs or the importer. See G&R Produce Co. v. United States, 381 F.3d 1328, 1332
(Fed. Cir. 2004). However, because assessment of AD duties does not fall under Customs’
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. This
inconsistency does not make the protest invalid since a protest need only give “some information
within the protest . . . that was reasonably calculated to direct the mind of Customs to the full
nature of a specific claim” to meet specificity requirements in 19 U.S.C. § 1514(c). Koike
Aronson, Inc., 21 CIT 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 including sending notices of suspension) constitutes a recognized category of protests
under 19 U.S.C. § 1514(a)(5). Therefore, the court has jurisdiction under 28 U.S.C. § 1581(a)
over the liquidation claim.
Court No. 00-00022 Page 15

that Customs’ failure to correctly carry out its statutorily-mandated notice of suspension should

in itself render the liquidation invalid. Likewise, ANF argues that Customs abused its discretion

by liquidating the entry despite an ongoing ITC investigation into the original AD determination.

For reasons set forth below, both theories fail to invalidate Customs’ liquidation of the entry.

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 adhere to statutory mandates 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 as required by statute 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

appropriate Commerce determination is made” and do not require subsequent action by Customs

to occur because they occur by operation of law or court order.18 LG Elecs. U.S.A., Inc., 21 CIT

at 1429 n.15.

17
Notice of suspension
If the liquidation of any entry is suspended, the Secretary shall by regulation
require that notice of the suspension be provided, in such manner as the Secretary
considers appropriate, to the importer of record or drawback claimant, as the case
may be, and to any authorized agent and surety of such importer of record or
drawback claimant.

19 U.S.C. § 1504(c).
18
Suspensions occur “only when provided by law or regulation, or when directed by the
Commissioner of Customs” or when required by court order. 19 C.F.R. § 159.51; see
§ 159.12(a)(2). In contrast, 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.
Court No. 00-00022 Page 16

Once a suspension occurs, the statute requires Customs to send suspension notices to

importers and sureties pursuant to 19 C.F.R. § 159.12 and 19 U.S.C. § 1504(c). See Frontier Ins.

Co. v. United States, 25 CIT 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 Slip Op. 06-13 (Jan. 25, 2006); Atteberry v.

United States, 27 CIT __, __, 2003 WL 21748674, at *8-11 (2003) (not reported in F. Supp.).

Procedural errors by Customs are harmless unless the errors are “prejudicial to the party

seeking to have the action declared 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 what prejudice it suffered. See Pl.’s Br. 18.

ANF provides no evidence to support its claim that imperfect notice to Amlon resulted in

prejudice to either Amlon or itself. Therefore, Customs’ imperfect notice to Amlon amounts to

harmless error because ANF has shown no prejudicial harm suffered by Amlon or itself 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 determination 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 under
Court No. 00-00022 Page 17

investigation by the ITC 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 at 977. “Commerce conducts the antidumping duty

investigation, calculates the antidumping margin, and issues the antidumping duty order.

Commerce then directs Customs to collect the estimated duties.” Id. at 976 (citing

19 U.S.C. § 1673e(a)(1)).

In this case, Commerce instructed Customs to liquidate the entry in accordance with

19 C.F.R. § 351.212(c), which calls for automatic liquidation of AD duties if no interested party

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

not presented a valid claim that Customs abused its discretion by liquidating the entry.

C. THE CLASSIFICATION CLAIM

American National Fire also contends that Customs incorrectly classified the subject

merchandise as ferrosilicon and should have classified the merchandise under another category

which enjoys duty-free treatment.19 See Compl. ¶¶ 31-38; Pl.’s Br. 25-31. To bring 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 CIT at 1057. This requirement aims

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 at the trial was at the time in the mind of the importer, and that it
was sufficient to notify the collector of its true nature and character to the end that
19
A classification protest qualifies as a valid category of protests against Customs’ actions under
19 U.S.C. § 1514(a)(2).
Court No. 00-00022 Page 18

he might ascertain the precise facts, and have an opportunity to correct the mistake
and cure the defect, if it was one which could be obviated.

Wash. Intern. Ins. Co. v. United States, 16 CIT 599, 602 (1992) (citing Davies v. Arthur, 96

U.S. 148, 151 (1878)) (brackets & ellipses in original) (not reported in F. Supp.). More

specifically, a valid protest must have “distinctly and specifically” set forth the decision 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: “IMPROPER

CLASSIFICATION: We protest the classification of all imported merchandise. It should be

classified as entered.” Pl.’s Ex. Q. Plaintiff claims that these two sentences “put classification

into play so it could either amend or supplement its initial classification choice (as entered) in

accordance with 19 C.F.R. § 174.14 and 19 C.F.R. § 174.28.” Pl.’s Br. 37. This skeletal protest,

though, does not meet the statutory requirements. It does not specify what Customs classification

is being protested; in fact, the claim seems to argue that the original Customs classification was

correct because it asserts that the merchandise “should be classified as entered.” It fails to set

forth any reason for the objection or to state the nature of the objection. There is also no

statement about what Harmonized Tariff number ANF objects to or what the alleged correct

classification number should be. Because the protest does not meet the requirements in

§ 1514(c), the protest, by itself, is not valid. Consequently, ANF states that the court should

consider its July 22, 1999, letter to Customs a supplement or, alternatively, an amendment that

cures the defects in its original classification protest.20 See Pl.’s Br. 37.

20
While both parties refer to the July 22, 1998, letter interchangeably as a supplement or
amendment, the court will refer to it as a “supplement” when discussing it under
19 C.F.R. § 174.28 and an “amendment” when discussing it under 19 C.F.R. § 174.14.
Court No. 00-00022 Page 19

1. The Letter as a Supplement Under 19 C.F.R. § 174.28

ANF argues that it perfected 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, through supplements, in the

review and disposition of valid protests. The section reads:

In determining whether 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 original classification protest did not meet

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

matter21 - cannot serve as a supplement. Under these circumstances, the court cannot exercise

subject matter jurisdiction over the classification claim.

2. The Letter as an Amendment 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 period within which such protest may be filed determined in accordance

with § 174.12(e).” 19 C.F.R. § 174.14(a). Section 174.12(e) reads in pertinent part, “[p]rotests

shall be filed . . . within 90 days after . . . [t]he date of mailing of notice of demand for payment

against a bond in the case of a surety which has an unsatisfied legal claim under a bond written

by the surety.” Id. § 174.12(e).

21
E.g., ANF claims that an oral argument it made to Customs on June 29, 1999, counts as a
supplement. See Pl.’s Br. 37.
Court No. 00-00022 Page 20

Since Customs sent ANF a demand for payment on March 19, 1999, the 90-day period

began on that date, making June 17, 1999, the end of the 90-day 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. Without a valid amendment to perfect the faulty April 27,1999, classification protest this

Court has no jurisdiction to hear the claim.

3. Equitable Tolling to Allow the July 22, 1999, Letter as an Amendment Under
19 C.F.R. § 174.14

American National Fire also asks the court to equitably toll the 90-day period under

19 C.F.R. § 174.14 so that its letter from July 22, 1999, may count as a valid amendment.22 Pl.’s

Br. 36. ANF argues that the start date of the 90-day period in which to file and amend the protest

should be tolled to May 12, 1999, because on that date, it received sufficient information from

Customs to perfect its protest. See Pl.’s Br. 33-34. However, as Plaintiff correctly notes,

equitable tolling is not the norm, and courts allow it only in rare instances. See Irwin v. Dep’t of

Veteran Affairs, 498 U.S. 89, 96 (1990).

With respect to suits against the Government, the time limits imposed “involve a waiver

of sovereign immunity,” but remain subject to the same equitable tolling limitations for private

parties. Id. ANF cites cases illustrating that courts rarely employ equitable tolling, and most of

the cases it cites actually hold equitable tolling inapplicable. See id. at 97 (holding equitable

tolling does not extend to “garden variety” excusable neglect); Weddel v. Sec’y of HHS, 100 F.3d

929, 931 (Fed. Cir. 1996) (stating that equitable tolling does not apply to statutes of repose

22
Plaintiff states that it is “not asking the Court to toll the time to extent [sic] the
jurisdictional requirement of filing a Protest in 90 days, but rather 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 “specifics” Plaintiff refers to since nothing on the record 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.
Court No. 00-00022 Page 21

because they cut off cause of action irrespective of time of accrual, and that equitable tolling is

usually available unless statute indicates contrary intent by establishing outer date 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 period 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 Lines, Inc. v. United States, the

court equitably tolled the 90-day period within which the plaintiff had to file a protest. 69

C.C.P.A. 1, 6 (1981). However, while not explicitly overruled, the holding in Farrell Lines has

been questioned. See U.S. JVC Corp, 22 CIT at 691 n.7. More significantly, the majority in

Farrell Lines did not discuss the purpose underlying the 90-day period 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 threshold to sustain an equitable tolling claim, ANF must

demonstrate with specificity the facts that warrant resorting to this unorthodox measure. See

Irwin, 498 U.S. at 96. ANF provided only the cover sheet to Customs’ communication with

it on May 12, 1999, as evidence 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 case A-570-819-000 Ferrisolicon [sic] from China (PRC).”23 Pl.’s

Ex. S.

23
The court believes that the fax cover sheet from Customs refers to Message No. 8257111 from
Commerce, which provided liquidation instructions for ferrosilicon from China. This document
is three pages long and included as Exhibit K in Plaintiff’s brief.
Court No. 00-00022 Page 22

ANF has not demonstrated how it needed this communication to perfect its

classification protest. None of the documents that ANF referenced in its July 22, 1999, letter

fell exclusively within Customs’ control. The classification claim in the letter referenced the

HTSUS, a mill test certificate, a product invoice, and a letter from the end purchaser stating

that the product could not be used for its intended purchase and was disposed of by landfill.

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

needed Customs’ May 12, 1999, communication to perfect its classification protest, ANF

fails to make its case for equitable tolling. In addition, assuming arguendo that ANF required

the May 12, 1999, documents from Customs to perfect its protest, ANF still had 36 days

before the June 17, 1999, deadline to submit the amendment. Thus, the court finds no reason

for equitable tolling to apply to the classification claim. Because the classification protest 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. INTEREST PAYMENTS

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 claimant must pay “all liquidated

duties, charges, or exactions” at the time an action in this Court is commenced. 28 U.S.C.

§ 2637(a). Furthermore, charges and exactions under § 2637(a) “include the assessment of

interest on the late payment 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.2d
Court No. 00-00022 Page 23

563, 566 (Fed. Cir. 1989). Thus, payment of interest is a prerequisite to invoke this Court’s

jurisdiction, see 28 U.S.C. § 2637(a), and Plaintiff’s interest payment claim is without merit.

Conclusion

Although the court is left without recourse to address ANF’s complaints, the 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

administrative review process to get guidance on filing its claims and received only poorly

written responses, which added to ANF’s confusion before it finally sought recourse in this

Court.24 Nevertheless, mandatory jurisdictional requirements dictate that this Court grant the

Government’s motion for summary judgment and deny Plaintiff’s motion. A judgment will

be issued accordingly.

July 18, 2006 /s/ Judith M. Barzilay

Dated:_____________________ ______________________

New York, NY Judge

24
There is also the confusing ab initio nature of the antidumping rescission order from
Commerce. It is unclear why Commerce even made an ab initio determination if only
unliquidated entries would be affected since the result is no different from a normal rescission.
For Commerce to order the liquidation of entries while at the same time investigating an
enormous price-fixing conspiracy concerning these entries leaves businesses such as the Plaintiff
to conclude the Government unjustly enriches itself to the detriment of its citizens.