NEC Solutions (America), Inc. v. United States

Slip Op. 03-80

_______________________

UNITED STATES COURT OF INTERNATIONAL TRADE
_______________________

____________________________________
:
NEC SOLUTIONS (AMERICA), INC., :
:
Plaintiff, :
: Consol. Court No. 01-00147
v. :
:
UNITED STATES, :
:
Defendants. :
:
____________________________________:

[Partial Summary Judgment for Plaintiff. Publication on Customs Electronic Bulletin Board of
Dep’t of Commerce e-mail indicating that suspension of liquidation has been terminated is
notice for the purposes of deemed liquidation pursuant 19 U.S.C. § 1504(d).]

Dated: July 9, 2003

Paul, Weiss, Rifkind, Wharton & Garrison (Robert E. Montgomery, Jr. and Jesse A.
Nicol) for plaintiff.

Peter D. Keisler, Assistant Attorney General, John J. Mahon, Acting Attorney in Charge,
International Trade Field Office, Commercial Litigation Branch, Civil Division, United States
Department of Justice (James A Curley), Chi S. Choy, Office of Chief Counsel, United States
Bureau of Customs and Border Protection, William J. Kovatch, Jr., Office of Chief Counsel for
Import Administration, United States Department of Commerce, of counsel, for defendant.
CONSOL. COURT NO . 01-00147 PAGE 2

OPINION

RESTANI, Judge:

This consolidated matter is before the court on cross-motions by Plaintiff NEC Solutions

(America), Inc. (“NEC”) and Defendant (the “Government”) for summary judgment pursuant to

USCIT Rule 56. NEC challenges the timeliness of liquidation of certain color television imports

by the United States Customs Service (“Customs”).1 NEC argues that it is entitled to a refund of

certain antidumping duties because Customs failed to timely liquidate related entries within six

(6) months of receiving notice that a court-ordered suspension of liquidation had been lifted and,

therefore, entries should be deemed liquidated at the rate asserted at entry pursuant to 19 U.S.C.

§ 1504(d), as amended in 1993 by the North American Free Trade Agreement Implementation

Act., Pub. L. No. 103-182, § 641, 107 Stat. 2057, 2204-05 (1993). In support of its claim, NEC

argues that Customs received actual notice that the suspension had been lifted through an

electronic message (the “e-mail”) issued by the United States Department of Commerce

(“Commerce”), and constructive notice when the decision was presumably received by the

United States Department of Justice (“Justice”).

1
On February 4, 2003, pursuant to section 1502 of the Homeland Security Act of 2002,
P.L. 107-296, 116 Stat. 2178 (Nov. 25, 2002), the President of the United States transmitted to
the House of Representatives a “Reorganization Plan Modification for the Department of
Homeland Security” (the “Plan”) which, effective March 1, 2003, renamed the U.S. Customs
Service the “Bureau of Customs and Border Protection.” H.R. Doc. 108-32, at 4 (2003). While
Customs’s authority and responsibilities have been incorporated by the Bureau of Customs and
Border Protection, the events and decisions at issue here occurred well before this change. For
that reason and for ease of evaluation, the court will refer to the agency as “Customs” throughout.
CONSOL. COURT NO . 01-00147 PAGE 3

JURISDICTION & STANDARD OF REVIEW

Plaintiff NEC paid all related duties and interest assessed by Customs and filed multiple

protests pursuant to 19 U.S.C. § 1515. NEC timely filed this action within 180 days after

Customs mailed notice of the denial of Plaintiff’s protests. The court has subject matter

jurisdiction over the denial of Customs protests under 28 U.S.C. § 1581(a) (2002).2 Summary

judgment is appropriate when the record, viewed in the light most favorable to the nonmoving

party, shows no genuine issue of material fact, and the moving party is entitled to judgment as a

matter of law. USCIT R. 56(d).

BACKGROUND

This matter involves the liquidation of color television merchandise manufactured by

NEC Corporation and imported by NEC Home Electronics (USA), Inc. into the United States

during a seven-year period from April 1, 1982 until February 28, 1989.3 During that time, the

importation of televisions from Japan was subject to a 1971 antidumping duty order. See

2
The Government initially argued that the court lacked jurisdiction over certain entries
(Nos. 110-08696269, 110-086972002, 110-08699792, 110-08699792, 110-0701457, and 110-
08706373) because the protest (No. 5501-00-100371) was not filed within 90 days after
liquidation as required by 19 U.S.C. § 1514(a). The Government later conceded that the protest
was in fact timely transmitted by facsimile to its Dallas/Fort Worth office during business hours
but, due to time zone differences, Defendant inadvertently misinterpreted the transmission time
on the document, which was sent at 5:04 Eastern Standard Time/4:04 Central Standard Time.
After recognizing this error, the Government withdrew its jurisdictional objection as to these
entries. Def.’s Br. in Reply to Plaintiff’s Opposition to the Cross-Motion for Summary
Judgment, filed Feb. 7, 2003.
3
Plaintiff NEC Solutions (America) Inc., previously known as NEC Technologies, Inc.,
is the successor-in-interest to NEC Home Electronics (USA), Inc.
CONSOL. COURT NO . 01-00147 PAGE 4

Television Receiving Sets, Monochrome and Color, From Japan, 36 Fed. Reg. 4597 (Dep’t of

Treas. Mar. 8, 1971). Commerce conducted several administrative reviews of the antidumping

order over this period.4 Because NEC has withdrawn its challenge as to the fourth administrative

review period,5 only the duties paid on entries subject to the fifth through tenth administrative

reviews remain in dispute.

A. Fifth Through Eighth Review Period

NEC’s entries made between April 1, 1983 and February 28, 1987 were covered by

Commerce’s fifth through eighth administrative review periods. See chart, supra n. 4.

4
The entries at issue were imported by NEC during the following administrative review
periods:

Administrative Review Period
4th (moot) April 1, 1982 to March 31, 1983
5th April 1, 1983 to March 31, 1984
6th April 1, 1984 to February 28, 1985
7th March 1, 1985 to February 28, 1986
8th March 1, 1986 to February 28, 1987
9th March 1, 1987 to February 29, 1988
10th March 1, 1988 to February 28, 1989

5
On April 20, 2001, Commerce issued liquidation instructions to Customs applying a
zero margin to NEC’s entries made during the fourth administrative review period. Because
these entries were liquidated at the rate asserted by Plaintiff at the time of entry, NEC concedes
that its request for declaratory judgment as to these entries are now moot.
CONSOL. COURT NO . 01-00147 PAGE 5

Commerce consolidated these entries into a single administrative review.6 NEC subsequently

challenged Commerce’s calculation of the dumping margin, which covered several

manufacturers. See NEC Home Electronics, Ltd. v. United States, 18 CIT 336 (1994), aff’d in

part, rev’d in part, 54 F.3d 736 (Fed. Cir. 1995). The matter was twice remanded to Commerce,

the latter of which required that Commerce redetermine the foreign market value of NEC’s

merchandise for comparison with the U.S. price in order to determine the proper dumping

margin. See NEC Home Electronics, Ltd. v. United States, 22 CIT 167, 172, 3 F. Supp. 2d 1451,

1456 (1998). Commerce’s second remand resulted in a revised antidumping margin for these

periods.7 See Final Results of Redetermination (Dep’t Commerce November 30, 1998). On

July 21, 1999, the court sustained those final results, see NEC Home Electronics, Ltd. v. United

States, 59 F. Supp. 2d 1337 (Ct. Int’l Trade 1999), and the injunction suspending liquidation of

Plaintiff’s entries covered by the fifth through eighth review periods was lifted when the decision

became final on September 19, 1999.8

Although, 19 U.S.C. § 1516a(e) required that, because the duty rates were changed from

Commerce’s original published results, Commerce publish “notice of the court decision . . .

6
The consolidated administrative review resulted in a final dumping margins of 18.21
percent (5th period), 7.37 percent (6th period), 7.16 percent (7th period), and 22.90 percent (8th
period). See Television Receivers, Monochrome and Color, From Japan, 55 Fed. Reg. 35,517
(Dep’t Commerce Aug. 28, 1989) (final admin. review).
7
The remand resulted in substantially lower final dumping margins of 2.20 percent (5th
period), 7.37 percent (6th period), 7.16 percent (7th period), and 22.90 percent (8th period).
8
The decision became final sixty (60) days after the opinion was issued, when the time
to appeal expired without the filing of an appeal. See Fujitsu Gen. Am., Inc. v. United States,
283 F.3d 1364, 1379 (Fed. Cir. 2002).
CONSOL. COURT NO . 01-00147 PAGE 6

within ten days from the date of the issuance of the court decision,” Commerce admits that it

failed to do so. Several months later, on June 23, 2000, Commerce sent an e-mail to Customs

stating that “RECORDS AT THE DEPARTMENT OF COMMERCE INDICATE THAT

THERE SHOULD BE NO UNLIQUIDATED ENTRIES OF TELEVISION RECEIVERS

MONOCHROME AND COLOR, FROM JAPAN . . . HELD BY CUSTOMS FOR

ANTIDUMPING PURPOSES DURING THE PERIOD 03/10/1971 THROUGH

02/28/1999 . . . .” June 23rd e-mail e-mail from Paul Schwartz, Director, Trade Enforcement &

Control to Directors of Field Operations, Port Directors, subject ADD-0175202-TV-JP (the “e-

mail”) (emphasis added).9 The e-mail went on to state that if any Customs import office was

suspending liquidation on these entries, Customs officers should report specific information to

Commerce within twenty (20) days. Customs then posted the message on the “Customs

Electronic Bulletin Board,” which the Government concedes can be accessed by the public. See

May 22, 2003, Letter from James A. Curley, Attorney for Defendant (“May 22nd Curley Letter”).

On January 10, 11, and March 26, 2001, Commerce sent electronic messages to Customs

stating that the order suspending liquidation had been lifted, and that the entries were to be

liquidated at specific antidumping duty rates. Between February 2001 and June 2001, various

Customs ports issued liquidation notices and bills to NEC with respect to the fifth through eighth

period entries. NEC filed twenty (20) protests arguing, inter alia, that the merchandise had

already been liquidated by operation of law pursuant to 19 U.S.C. § 1504(d). NEC argued that

Customs received notice that the suspension had been lifted through Commerce’s June 23, 2000

9
There was an exception for certain entries of televisions produced by another
manufacturer that continued to be enjoined from liquidation by court order.
CONSOL. COURT NO . 01-00147 PAGE 7

e-mail and, because the entries were not liquidated within six months (December 23, 2000), the

entries should have been deemed liquidated. Customs denied NEC’s protests on grounds that the

entries had been liquidated within six months of Commerce’s January 10, 11, and March 26,

2001 e-mails providing specific liquidation instructions , which Customs concluded were the

starting point for the six-month period. NEC timely challenged the fifth through eighth period

entries on December 10, 2001.

B. Ninth and Tenth Review Periods

NEC’s entries made between March 1, 1987 and February 28, 1989, were covered by

Commerce’s ninth and tenth review periods. The margins for these entries were determined in

separate administrative reviews.10 NEC and others challenged those final results. The court-

ordered suspensions of liquidation on these entries were terminated when the actions were

dismissed by agreement of the parties. See Order of Dismissal, Zenith Electronics Corp. v.

United States, Consol. Court No. 89-04-00212 (Ct. Int’l Trade Dec. 2, 1993); Order of Dismissal,

Zenith Electronics Corp. v. United States, Consol. Court No. 90-02-00058 (Ct. Int’l Trade June

20, 1996). There was no formal publication regarding the dismissals and is not clear that any is

required as the rates did not change.

Nevertheless, it was not until several years later, on April 28, 2000 and May 15, 2000,

that Commerce transmitted liquidation instructions by e-mail. Customs liquidated the entries

10
In its final results, Commerce assigned final dumping margins of 16.32 percent (9th)
and 22.90 percent (10th). See Television Receivers, Monochrome and Color, From Japan, 54
Fed. Reg. 13,917 (Dep’t Commerce April 6, 1989) (final admin. review); Television Receivers,
Monochrome and Color, From Japan, 55 Fed. Reg. 2399 (Dep’t Commerce June 24, 1990) (final
admin. review).
CONSOL. COURT NO . 01-00147 PAGE 8

between June and September of 2000. NEC filed nine (9) related protests arguing again that the

entries should be deemed liquidated under 19 U.S.C. § 1504(d). With respect to the ninth and

tenth periods, NEC raised a different argument, claiming that Customs had received notice when

Justice, which NEC argues represents Customs as legal counsel, received the orders dismissing

the cases. As before, the protests were denied on the ground that the entries were properly

liquidated within six (6) months of Customs’s receipt of specific liquidation instructions from

Commerce. On April 24, 2001, NEC timely challenged the results of the ninth and tenth period

administrative reviews. Pursuant to motion by NEC, the court subsequently consolidated NEC’s

action related to the ninth and tenth period entries with NEC’s action related to the fifth through

eighth period entries.

DISCUSSION

Section 1504(d) of Title 19 requires that Customs liquidate entries within six (6) months

after receiving “notice” that a suspension of liquidation of such entries has been removed.11 19

11
Section 1504(d) provided, in relevant part:

[W]hen 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.

Section 1504(d) was amended in 1994, but the amendment applies only to administrative reviews
commenced on or after January 1, 1995. The administrative reviews covering the fifth through
the eighth periods were commenced prior to January 1, 1995. The parties agree that later
amendments do not affect this case.
CONSOL. COURT NO . 01-00147 PAGE 9

U.S.C. § 1504(d), as amended in 1993 by the North American Free Trade Agreement

Implementation Act., Pub. L. No. 103-182, § 641, 107 Stat. 2057, 2204-05 (effective December

8, 1993). If Customs fails to timely liquidate the entries after receiving notice, the entries are

“deemed” liquidated at the rate asserted at the time of entry. See Fujitsu Gen. Am., Inc. v.

United States (“Fujitsu”), 283 F.3d 1364, 1376 (Fed. Cir. 2002) (“[I]n order for a deemed

liquidation to occur, (1) the suspension of liquidation that was in place must have been removed;

(2) Customs must have received notice of the removal of the suspension; and (3) Customs must

not liquidate the entry at issue within six months of receiving such notice.”). According to

Commerce, Customs typically receives the relevant notice in the form of an e-mail from

Commerce providing explicit liquidation instructions. The Federal Circuit, however, has

recognized that other methods of notice are sufficient.

In International Trading Co. v. United States, the court rejected the Government’s

argument that Customs receives notice, for the purposes of § 1504(d), only when it receives

specific liquidation instructions from Commerce.12 281 F.3d 1268, 1276 (Fed. Cir. 2002) (“Int’l

Trading”). The court concluded that, when the suspension is lifted by publication in the Federal

Register, publication itself was sufficient to provide the requisite notice to Customs. Id. at

1275.13 The court notes that Int’l Trading was addressing a slightly different situation than that

12
In rejecting the Government’s argument that notice required liquidation instructions,
the court reasoned that “[a]dopting that position would require the courts, after the fact, to
examine informal and non-public communications between Commerce and Customs to
determine whether and when those communications constituted ‘liquidation instructions.’” Int’l
Trading, 281 F.3d at 1276.
13
In accepting publication as a sufficient means of notice, the court reasoned that:
CONSOL. COURT NO . 01-00147 PAGE 10

here. In that case, “suspension was removed upon publication of the final results in the Federal

Register” Id. at 1271. Here, the suspensions terminated by the issuance of a final and conclusive

court decision. See, e.g., Hosiden Corp. v. Advanced Display Mfrs. of America, 85 F.3d 589,

590-91 (Fed. Cir. 1996). In Fujitsu, the court concluded that publication in the Federal Register

of notice regarding a final court decision constituted § 1504(d) notice of the lifting of suspension.

It is just as important that there be “an unambiguous and public starting point for the
six-month liquidation period” under these circumstances as it is when liquidation of
entries is suspended pending an administrative review and thereafter the suspension
is removed when the final results of the review are announced. We therefore
conclude that Customs received notice of the removal of the suspension of
liquidation on September 16, 1997, when Commerce published notice of the Fujitsu
General decision in the Federal Register.

Fujitsu, 283 F.3d at 1381-82 (quoting Int’l Trading, 281 F.3d at 1275). Taken together, Int’l

Trading and Fujitsu make clear that, while specific liquidation instructions from Commerce may

be sufficient,14 they are not the exclusive method of § 1504(d) notice. The question before the

[T]he Federal Register is a familiar manner of providing notice to parties in
antidumping proceedings . . . . Moreover, the date of publication provides an
unambiguous and public starting point for the six-month liquidation period, and it
does not give the government the ability to postpone indefinitely the removal of
suspension of liquidation (and thus the date by which liquidation must be completed)
as would be the case if the six-month liquidation period did not begin to run until
Commerce sent a message to Customs advising of the removal of suspension of
liquidation.

Int’l Trading, 281 F.3d at 1275.
14
In Fujitsu and Int’l Trading Co., the Court of Appeals found that publication before
Commerce’s transmission of specific liquidation instruction served as § 1504(d) notice and,
therefore, the court did not address whether the instructions themselves were sufficient.
Liquidation instructions may contain confidential information and may not be public. The court
does not decide what affect liquidation instructions have when there is no public notice that they
have issued.
CONSOL. COURT NO . 01-00147 PAGE 11

court, therefore, is whether the communications raised by NEC are adequate.

A. Fifth through Eighth Review Periods

With respect to entries during the fifth through eighth review periods, NEC argues that it

is entitled to a refund of certain duties because Customs failed to liquidate those entries within

six months of receiving Commerce’s June 23rd e-mail. NEC argues that, because Commerce

failed to timely liquidate the entries, those goods should have been deemed liquidated under

§ 1504(d) at the rate asserted at the time of entry. Defendant responds that the June 23rd e-mail

was not sufficient to put Customs on notice because it did not (1) expressly notify Customs that

the suspension of liquidation had lifted on entries from the fifth through eighth review periods; or

(2) provide the precise duty rate to be applied. According to Defendant, Customs “could not

have known from a reading of the e-mail that suspension of liquidation of entries covered by the

fifth through eighth administrative reviews was removed.” Citing Mitsubishi Elec. Am., Inc. v.

United States, 44 F.3d 973, 977 (Fed. Cir. 1994) (“Customs has a merely ministerial role in

liquidating antidumping duties,” and “ merely follows Commerce’s instructions in assessing and

collecting duties.”).

The court notes from the outset that this problem arises from Commerce’s admitted

failure to properly publish notice of the court’s final decision in this matter, as required by

19 U.S.C. § 1516a(e). Defendant contends that this failure, due to an alleged administrative
CONSOL. COURT NO . 01-00147 PAGE 12

oversight,15 has no consequence because § 1516a(e) is directory rather than mandatory. Fujitsu,

283 F.3d at 1382 (“[T]here is no language in section 1516a(e) that attaches a consequence to a

failure by Commerce to meet the ten-day publication requirement, let alone the consequence of

deemed liquidation under section 1504(d).”). While that may be technically correct, had

Commerce properly published notice of the opinion, as required, the court would not need to

15
According to the Government, this administrative oversight occurred, in part, because
of Commerce’s “time consuming” publication process.

When a draft of the amended results is prepared, it is circulated through a chain of
reviewers, which include the case analyst, case attorney, program manager, office
director, senior attorney, and the responsible Deputy Assistant Secretary. After the
review is completed, the amended results are placed in final form and signed by the
Assistant Secretary. The amended results then are forwarded to the Central Records
Unit where they are certified and sent to the Federal Register for publication.

May 22nd Curley Letter. Commerce’s self-imposed bureaucracy, however, is no excuse for
delay. Commerce is aware of its statutory obligations and should have crafted its procedures
accordingly. The Government brazenly claims that an interested party who believes it will be
injured by a delay “is not without remedy” because it can seek relief by petitioning for a writ of
mandamus. Citing Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 1990). The idea that a
party must seek such an extraordinary remedy to ensure that Commerce simply fulfills its
statutory responsibilities is untenable. By delaying liquidation in this manner, Commerce
undermines both the antidumping duty laws and Congress’ intent to settle importers’ liabilities
promptly.
In 2002 and the first four months of 2003, Commerce published a total of eight (8)
amended final determinations, none of which were published within the requisite ten days. The
most egregious violations occurred (a) 1 year and 3 months, (b) 3 years and 1 month, and (c) 5
years and 8 months after the reviewing court’s decisions became final. According to Defendant,
there is presently one matter pending before this court concerning a delay of eight years and two
months. Such delays are unacceptable. And, of course, here there was no publication at all. The
Government argues that “Commerce now has new procedures under consideration that are
expected to prevent significant delays in publishing amended final determinations.” Id. Whether
that is true remains to be seen, and the Government has not committed to meet the statutory
deadline at all. In the meantime, the court finds no excuse for Commerce’s failure to comply
with the statute and will likely craft future orders under the presumption that Commerce will fail
to timely publish.
CONSOL. COURT NO . 01-00147 PAGE 13

“referee” whether other, less formal, communications are sufficient for § 1504(d) purposes.

Determining the sufficiency of notice under § 1504(d) poses a problem because, as

Defendant concedes, the statute does not define or otherwise explain the requirements for such

notice. While it is clear from Int’l Trading and Fujitsu that publication in the Federal Register of

the agency’s final results or the court’s final decision are sufficient, it is less clear what is not.

The Government, for obvious reasons, advocates a strict approach. For example, Defendant

argues that, other than specific liquidation instructions, a sufficient notice must plainly read that

“suspension has been lifted.” In Fujitsu, however, the court held that publication of notice of the

decision in that case met the requirements of § 1504(d) despite the fact that neither the court

decision nor Commerce’s Federal Register notice specifically mentioned suspension. Fujitsu,

283 F.3d at 1383. Defendant next argues that any § 1504(d) notice not mentioning suspension

must contain the applicable duty rate. It is true that, in Int’l Trading, the court held that inclusion

of the duty amount, in the absence of express language that the suspension has been lifted, is

sufficient. 281 F.3d at 1276 (“‘[N]otice’ of the duty to be paid is, in effect, notice of the removal

of suspension.”). The court, however, did not hold that informing Customs of the applicable

duty rate was the exclusive alternative method of providing § 1504(d) notice or that is was a

strict requirement. While the absence of the duty rate from the June 23rd e-mail places this

situation outside the facts of Fujitsu and Int’l Trading, it does not necessarily doom NEC’s case.16

Despite Defendant’s arguments to the contrary, Fujitsu and Int’l Trading do not specify

16
The court notes that, once Customs has notice that suspension has been lifted, there is
nothing to prevent it from obtaining the applicable duty rates from Commerce. Customs has six
full months to get this done.
CONSOL. COURT NO . 01-00147 PAGE 14

the requirements for § 1504(d) notice, except to state that notice should be “unambiguous.” The

issue, therefore, is whether this particular e-mail unambiguously provided notice to Customs that

the suspension had been lifted. The first sentence of the first paragraph provides that “there

should be no unliquidated entries of [subject imports] held by Customs for antidumping

purposes.” The second paragraph identifies an exception for televisions from another

manufacturer. “With respect to unliquidated entries of [the other manufacturer’s merchandise]

that are the subject of [a] court ordered injunction, the Commerce Department continues to be

enjoined from ordering the liquidation of these entries until the court disposes of the litigation or

dissolves the injunctions.” The third paragraph provides that, “with the exception of [the entries

discussed in paragraph 2], if any Customs import office is suspending liquidation of entries of

this merchandise for antidumping purposes” the officer should respond to Commerce.17 After

receiving the e-mail, Customs posted the message to its Customs Electronic Bulletin Board,

which can be accessed by both Customs officials and the public.18

Commerce argues that its purpose in distributing the message was not to notify Customs

17
According to Defendant, Commerce received several responses to its inquiry, which
were the basis for the formal liquidation instructions issued more in January and March 2001.
18
According to counsel for Defendant,

When Commerce sends an electronic message to Customs, the message is forwarded
to Customs Automated Commercial System (“ACS”) for internal distribution. If
Commerce’s message allows disclosure to the public, Customs, in addition, will send
the message to the ACS Administrative Bulletin Board for Automated Broker
Interface, which can be accessed by brokers who file electronically with Customs,
and to an ACS representative who will then post the message on Customs Electronic
Bulletin Board, which can be accessed by the public.

May 22nd Curley Letter (emphasis added).
CONSOL. COURT NO . 01-00147 PAGE 15

of the removal of suspension but, instead, to inquire as to whether any unliquidated entries

remained. According to Commerce, the June 23rd e-mail was part of a larger project undertaken

to have Customs identify a wide variety of unliquidated entries involving numerous antidumping

investigations. Commerce contends that, at the time, it did not know whether Customs was

holding any unliquidated entries and that the e-mail was only an inquiry.19 When viewed in the

context of Commerce’s failure to publish the requisite notice, this post hoc approach to

investigating the status of outstanding entries makes sense. Commerce likely realized that it had

failed to notify Customs in this matter, which apparently happens frequently, supra n. 15, and

was attempting to discretely assess the situation. Commerce’s purpose in issuing the e-mail,

however, is irrelevant. The only question is whether this message notified Customs that

suspension had been lifted.

To anyone reasonably familiar with customs law, the juxtaposition of the mandate “there

should be no unliquidated entries” with the exception for certain goods for which a Commerce

liquidation order “continues to be enjoined” could only mean that there are no remaining

suspensions, court-ordered or otherwise, on subject entries, except for those identified. June

23rd e-mail, ¶¶ 1, 2. Reviewing the June 23rd e-mail as a whole, the court finds that a reasonable

Customs official, with knowledge in these matters, would have read the message to provide

19
Commerce argues that, while it knew there should be no unliquidated entries because
the suspension had been lifted, it did not know whether unliquidated entries remained and,
therefore, was proceeding under a “mistake of fact.” First, this was not a mistake of fact.
Commerce was simply proceeding with imperfect knowledge Second, the court notes that
Commerce did not know whether unliquidated entries existed because, as we have seen here,
Commerce frequently forgets to properly inform Customs that entries should be liquidated.
Therefore, any “mistake” was self-inflicted, for which the court finds no excuse.
CONSOL. COURT NO . 01-00147 PAGE 16

unambiguously that any suspension of liquidation on NEC’s entries had been removed. It is

important to note that Customs then posted the message to its Electronic Bulletin Board, which is

apparently “a familiar manner” for Customs to disseminate Commerce’s liquidation information

to Customs officials. Messages are posted only where Commerce expressly “allows disclosure

to the public,” therefore, there is no question that Commerce was aware that both Customs and

the public (i.e. the parties) would have access to this information. May 22nd Curley Letter at ¶ 2.

As such, the court concludes that Commerce’s June 23rd e-mail to Customs, which was

subsequently posted to the Customs Electronic Bulletin Board, is sufficient to serve as § 1504(d)

notice. NEC’s entries during the fifth through eighth review periods should therefore have been

deemed liquidated at the rate asserted at the time of entry. Consequently, the court grants

summary judgment to NEC as to these entries and orders Defendant to refund any additional

duties imposed.

B. Ninth and Tenth Review Periods

With respect to ninth and tenth review periods (and as alternative grounds for the fifth

through eighth), NEC argues that Customs received notice that the suspension of liquidation had

been lifted when the opinions dismissing the matter, and thereby lifting the suspensions, were

received by Justice. NEC’s argument is largely founded on an interrogatory response in which a

Justice representative states that he represented “the defendant, the United States” in this matter.

NEC argues that, because Customs is an agency of the United States, Justice is presumably its

counsel and, therefore, Customs had constructive notice by way of Justice’s ethical obligation to

keep its client informed. In Fujitsu, 283 F.3d at 1379, the court squarely rejected this argument,
CONSOL. COURT NO . 01-00147 PAGE 17

finding that service of an opinion on Justice was not service on Customs because “[t]he Justice

Department represented Commerce.” NEC argues that, if the CAFC had the facts of this case, it

would have decided differently. Whether that is true, the court cannot know. For the purposes of

this case, however, the court remains bound by Fujitsu. As such, the court finds that Defendant

is entitled to summary judgment as to entries related to the ninth and tenth review periods.

CONCLUSION

For the foregoing reasons, the court finds that the June 23rd e-mail from Commerce to

Customs provided notice, for the purposes of §1504(d), that the court order suspending

liquidation of entries during the fifth through eighth review periods had been lifted. Because

Customs did not liquidate within six months, the entries should have been deemed liquidated.

NEC is entitled to a refund of any additional duties imposed. The court grants summary

judgment to NEC as to these entries. With respect to the ninth and tenth review periods, NEC’s

constructive notice argument is foreclosed by Fujitsu. The court grants summary judgment to

Defendant as to these entries.
CONSOL. COURT NO . 01-00147 PAGE 18

The parties are hereby ordered to confer and Plaintiff should file an appropriate proposed

judgment sheet with the court indicating the proper amount be refunded, with interest if

applicable, within twenty (20) days. Defendants may file any objections within seven (7) days

thereafter.

SO ORDERED.

_______________________
Jane A. Restani
Judge

DATED: New York, New York

This 9th of July, 2003.
 ERRATA

NEC Solutions (America), Inc., v. United States, Consol. Court No. 01-00147, Slip Op. 03-80
dated July 9, 2003.

Page 6: On the 7th line, replace “June 23rd e-mail e-mail” with “June 23rd e-mail”.

Page 12: On the 18th line of footnote 15, replace:

In 2002 and the first four months of 2003, Commerce published a total of
eight (8) amended final determinations, none of which were published within the
requisite ten days. The most egregious violations occurred (a) 1 year and 3
months, (b) 3 years and 1 month, and (c) 5 years and 8 months after the reviewing
court’s decisions became final.

with

Suspension of liquidation is not removed until the reviewing court’s
decision becomes final. Fujitsu, 283 F.3d at 1379 (citing Timken, 893 F.2d at
339-40 (“[a]n ‘action’ does not end when one court renders a decision but
continues through the appeal process.”)). Commerce states, therefore, that it is
required to publish amended final determinations within ten days of the expiration
of the appeals period. See May 22nd Curley Letter at 2. For the purposes of this
case, the court accepts the government’s statement. It is at least clear that the
government must publish promptly.
In 2002 and the first four months of 2003, Commerce published a total of
eight (8) amended final determinations. Commerce admits that none were
published within ten days of the related court decision becoming final for all
purposes. Id. The most egregious violations occurred when Commerce published
notice (a) 1 year and 3 months, (b) 3 years and 1 month, and (c) 5 years and 8
months after the court decision became final.

Page 13: On the 5th line, after “less clear what is not.”, add footnote 15a:

As to the 5th through 8th review periods, the possibility of further appeal
prevented the court’s decision here from becoming final for all purposes until
sixty (60) days after issuance. See discussion supra note 15. Thus, publication
within ten (10) days of issuance of this court’s decision would not have signaled
the cessation of suspension of liquidation. However, publication of notice of the
final decision after the sixty (60) day period elapsed would have provided clear
notice. Instead, previous duty rates were superceded without any notice ever
appearing in the Federal Register.

July 21, 2003.