LIQ-4-01-CO:R:C:E 224710 AJS
District Director
U.S. Customs Service
Seattle (Area/Port of Blaine)
9901 Pacific Highway
Seattle WA 98230
Attn: Protest Reviewer
RE: Protest for further review number 3004-92-100193; carbon
steel plate from Japan; Kobe; Antidumping duty order A-588-067;
19 U.S.C. 1504(d); Canadian Fur Trappers Corp. v. U.S.; American
Permac, Inc. v. U.S.; interest on antidumping duties; Timken Co.,
v. U.S.
Dear District Director:
This is our decision in protest for further review number
3004-92-100193, dated December 9, 1992, concerning carbon steel
plate imported from Japan and manufactured by Kobe.
FACTS:
On May 30, 1978, in Treasury Decision (T.D.) 78-150, the
Department of the Treasury (DOT) published a finding of dumping
on carbon steel plate from Japan. 43 Fed. Reg. 22937 (1978). On
January 2, 1980, the administration of anti- dumping laws was
transferred from the DOT to the Department of Commerce (DOC) by
virtue of the Trade Agreements Act of 1979. On September 30,
1981, the DOC published the final results of their administrative
review of the dumping finding (i.e., A-588-067) with respect to
Kobe for the period up to March 31, 1980. 46 Fed. Reg. 47804
(1981).
Prior to October 1, 1984, annual administrative reviews of
antidumping orders were required by section 751 of the Tariff Act
of 1930. Consequently, the DOC initiated an
administrative review of their dumping findings for Kobe
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during the period of April 1980 through September 1981. The
subject merchandise was entered in April of 1981. Section
611(a)(2)(A) of the Trade and Tariff Act of 1984 amended section
751 to provide for reviews on request rather than automatically
on an annual basis. 50 Fed. Reg. 32556 (1985). On October 18,
1985, Kobe requested that the DOC complete the administrative
review of its sales of carbon steel plate during the period April
1980 through September 1981. On April 17, 1986, the DOC
published a notice revoking the antidumping finding on carbon
steel plate from Japan for entries on or after October 1, 1984.
51 Fed. Reg. 13039 (1986). This notice did not cover
unliquidated entries of steel plate from Japan which were
exported prior to October 1, 1984. Furthermore, the notice
stated that the DOC will address any entries not covered in a
prior administrative review and exported prior to October 1,
1984, in a separate review, if one is requested.
On August 15, 1986, Kobe withdrew its request for the
completion of an administrative review during the period April
1980 through September 1981.
In January of 1988, the DOC issued E-mail instructions
through Customs Headquarters to field offices regarding A-588-
067. These instructions listed various manufacturers and
exporters for whom the DOC had not received a request for an
administrative review of the antidumping duty order. The DOC
instructed Customs to assess antidumping duties on merchandise
entered, or withdrawn from warehouse for consumption, during the
periods and at the rate listed in the instructions. Kobe was not
on this list.
On August 19, 1992, the DOC issued further E-mail
instructions through Customs Headquarters to field offices
regarding A-588-067. Item number 7 of these instructions stated
that "[e]ffective as of the date of issuance of this email
message[,] you should no longer suspend liquidation of entries
covered by this email[,] you should proceed with liquidation
accordingly." These instructions required entries of carbon
steel plate manufactured or exported by Kobe, and entered or
withdrawn from warehouse for consumption from 4/1/80-9/30/81 to
be assessed antidumping duties at 6.70 percent. As stated
previously, the subject carbon steel plate was entered in April
of 1981. Accord- ingly, your district liquidated the subject
entries on September 11, 1992.
ISSUE:
Whether the subject entries were properly liquidated by
Customs or deemed liquidated by operation of law pursuant to 19
U.S.C. 1504.
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Whether Customs may assess interest on the antidumping
duties for the subject entries.
LAW AND ANALYSIS:
Generally, an entry of merchandise not liquidated within one
year "shall be deemed liquidated at the rate of duty, value,
quantity, and amount of duties asserted at the time of entry by
the importer of record." 19 U.S.C. 1504(a). Pursuant to section
1504(b), Customs may extend this period if liquidation is
suspended as required by statute or court order. The subject
entries were suspended by statute pending the results of an
administrative review. 19 U.S.C. 1504(d) states that any entry
not liquidated at the expiration of four years from the
applicable date specified in subsection (a) of this section
(i.e., the date of entry in this case), 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. In this case, the subject entries were
suspended by statute beyond four years from the entry date.
19 U.S.C. 1504(d) also provides that when a statutory
suspension of liquidation which extends beyond four years from
the date of entry is removed, the entry shall generally be
liquidated within 90 days therefrom. The Court of International
Trade (CIT) has stated that when a suspension of liquidation is
lifted after four years from the date of entry, Customs has a
discretionary 90 days to liquidate the entries. Canadian Fur
Trappers Corp. v. United States, 12 CIT 612 (1988), See also Nunn
Bush Shoe Co. and Weyco Group Inc. v. United States, 784 F. Supp
892 (1992). In this instance, the suspension of liquidation was
lifted on August 19, 1992, and the subject entries were
liquidated on September 11, 1992. Therefore, the subject entries
were liquidated properly by Customs pursuant to section 1504(d).
The protestant argues that the suspension of liquidation
terminated soon after August 15, 1986, when Kobe terminated the
administrative review. Only the DOC possesses authority to lift
a suspension of liquidation which is required pending the results
of an administrative review
pursuant to 19 U.S.C. 1675. As long as a suspension of
liquidation continues to be required by statute the suspension
may continue indefinitely. American Permac, Inc. v. United
States, 10 CIT 535, 539 (1986). As stated previously, the DOC
did not lift the suspension of liquidation on the subject entries
until August of 1992.
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Therefore, these entries could not have become deemed liquidated
until sometime after this date. Customs liquidated the subject
entries within 30 days from the lifting of suspension.
Accordingly, the subject entries did not become deemed liquidated
by operation of law.
The protestant also asserts that Customs improperly charged
interest on the assessed antidumping duties. On January 28,
1993, Customs issued an e-mail message correcting liquidation
instructions for carbon steel plate from Japan. These
instructions stated that no interest is to be assessed on entries
that were not subject to cash deposits (i.e., entered under
bond). The CIT has held that the DOC was correct in not
assessing interest on entries where Customs only required that a
bond be posted rather than a cash deposit. Timken Co., v. United
States, 777 F. Supp 20 (CIT 1990). It appears that the subject
entries were secured by a bond. Thus, the antidumping duties on
the subject entries may not been assessed with interest.
HOLDING:
The protest is denied and granted in part. It is denied in
that the subject entries were not deemed liquidated by operation
of law but instead by the actions of Customs on September 11,
1992. It is granted in that the antidumping duties may not be
assessed with interest because they were not subject to cash
deposits. A copy of this decision should be attached to the Form
19 and provided to the protestant.
Sincerely,
John Durant, Director