LIQ-11-CO:R:C:E 225162 AJS
District Director of Customs
U.S. Customs Service
P.O. Box 1490
St. Albans VT 05478
RE: Protest 0201-93-100283; Proper extension of liquidation;
Parvol PRA; Paramel DBM; Airedale Black F2G; 19 U.S.C.
1504(a)(1); Section 641, NAFTA Implementation Act; 19 U.S.C.
1504(b)(1); Detroit Zoological Soc'y v. U.S.; International Cargo
& Surety Ins. Co. v. U.S.; 19 CFR 159.12(b); Star Sales &
Distributing Corp. v. U.S.; 19 CFR 159.12(d); 19 CFR 159.12(e);
19 U.S.C. 1504(d).
Dear Sir or Madame:
This is our decision in Protest 0201-93-100283, dated July
15, 1993, concerning the extension of liquidation for certain
entries.
FACTS:
This protest involves the chemicals "Parvol PRA", "Paramel
DBM" and "Airedale Black F2G" (also referred to as "Airedale Fawn
Y" in invoice number E31317). The dates of entry for the subject
merchandise were February 5, 1991 (entry 1), and April 9, 1991
(entry 2).
On April 16, 1991, the protestant states that a Customs Form
(CF) 29, Request for Information, was sent to the importer
indicating that the classification of various commodities
including "Paralene PWG", "Paramel PA", "Paralene PVC", and
"Airedale Brown ER" would be rated advanced.
On May 14, 1991, another entry of Parvol PRA was made by the
protestant. On July 18, 1991, an automated CF 6431 request from
the field import specialists to the national import specialists
for this entry indicate a similar issue concerning "Parvol PCNR"
was before headquarters on a protest for further review. This
decision was issued as HQ 089897 on November 18, 1991.
-2-
In March of 1992, the district contacted the protestant
concerning the possibility of performing a Pre-Importation Review
for the protestant's merchandise. No record of a response to
this letter is indicated.
On March 18, 1992, a note to the file indicates that Counsel
for the protestant would contact Boston concerning current
classification ruling on four of protestant's chemicals (e.g.,
Parvol PRA). On March 26, 1992, Counsel indicated that
liquidation was being withheld because of a CF 6431 from Boston
and a pending protest for further review from another importer
concerning Parvol PRA.
In April of 1992, a Customs laboratory report was requested
for Paramel DBM. On June 5, 1992, this report was issued.
On August 13, 1992, a CF 29, was issued to the protestant
concerning Parvol PRA from a different entry. This CF 29
indicated that this other entry was in the liquidation process
and was not available for review in that office.
On October 28, 1992, a CF 28 was sent to the protestant
concerning Paramel DBM. A response was received concerning this
request on November 23, 1992.
A search of Customs computer records indicates that entry 1
was extended for the second time on November 3, 1992, which is
within two years of the entry date of February 5, 1991. Customs
computer records also indicate that entry 2 was extended for the
second time on January 7, 1993, which is within two years of the
entry date of April 9, 1991.
On January 15, 1993, the protestant claims a CF 29 was sent
indicating that the merchandise would be liquidated at a rate
advance.
On February 18, 1993, the district again contacted the
protestant concerning a Pre-Importation Review. This letter is
annotated to indicate that such a review was being conducted by
Customs in Boston.
On April 16, 1993, both entries were liquidated.
ISSUE:
Whether the subject entries were deemed liquidated pursuant
to 19 U.S.C. 1504(a)(1) or properly extended and liquidated
pursuant to 19 U.S.C. 1504(b)(1)
-3-
LAW AND ANALYSIS:
Initially, we note that the subject protest was timely filed
pursuant to 19 U.S.C. 1514(c)(2)(A). The entries in question
were liquidated on April 16, 1993, and this protest was filed on
July 15, 1993. We also note that the liquidation of an entry is
a protestable matter pursuant to section 1514(a)(5).
19 U.S.C. 1504(a)(1) provides that except as provided in
subsection (b) of this section, an entry of merchandise not
liquidated within one year from the date of entry of such
merchandise 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. This provision was amended by
section 641, Title VI, of the North American Free Trade Agreement
(NAFTA) Implementation Act, Public Law 103-182, to provide, in
part, that unless an entry is extended under subsection (b) it
shall be deemed liquidated in the same manner as described above.
The subject entries were liquidated more than one year after the
date of entry. Thus, the protestant claims that the subject
entries were deemed liquidated pursuant to section 1504(a).
Section 1504(b) provides that the Secretary of the Treasury
may extend the period in which to liquidate an entry by giving
notice of such extension to the importer of record in such form
and manner as the Secretary shall prescribe in regulations, if
(1) information needed for the proper appraisement or
classification of the merchandise is not available to the
appropriate customs officer. 19 CFR 159.12(a)(1) provides that
the district director may extend the 1-year statutory period for
liquidation for an additional period not to exceed 1 year if
information needed by Customs for the proper classification of
the merchandise is not available. This additional period expires
1 year from the expiration of the 1-year statutory period for
liquidation, which itself expires 1 year from the date of entry.
Section 1504(b)(1) was also amended by section 641 of the
NAFTA Implementation Act to provide that the Secretary may also
extend the period in which to liquidate an entry if the
information for insuring compliance with applicable law is not
available to the Customs Service. The issue of whether an
extension of liquidation of an entry for insufficient information
is justified under section 1504(b)(1) was addressed by the Court
of International Trade (CIT) in Detroit Zoological Soc'y v.
United States, 10 CIT
133, 630 F. Supp. 1350 (1986). The CIT held that the term
-4-
"information" as used in section 1504(b)(1) "should be construed
to include whatever is reasonably necessary for proper
appraisement or classification of the merchandise involved." 10
CIT 138, 630 F. Supp. 1356. Specifically, the CIT held
"information" to include internal Customs advice requested by the
importer. Subsequently, in International Cargo & Surety Ins. Co.
v. United States, 15 CIT 541, 779 F. Supp. 174, 178 (1991), the
CIT interpreted the term to include internal information sought
by Customs.
In this case, liquidation of the subject entries was
initially extended beyond the one year period prescribed in
section 1504(a) because a similar classification issue was
pending with Customs Headquarters. For entry 2, an inquiry
regarding a Pre-Importation Review was also outstanding. As
stated previously, the absence of internal information sought by
Customs or requested by the importer are proper grounds for
extending the liquidation of an entry under section 1504(b)(1).
Therefore, proper grounds existed for extending liquidation of
the subject entries beyond the one year period for liquidation
specified in section 1504(a).
19 CFR 159.12(b) states that if the district director
extends the time for liquidation, as provided in paragraph (a)(1)
of this section, he promptly shall notify the importer or the
consignee and his agent and surety on CF 4333-A that the time has
been extended and the reasons for doing so. Government officials
are entitled to a presumption that their duties are performed in
the manner required by law. Star Sales & Distributing Corp. v.
United States, 10 CIT 709, 710, 663 F. Supp. 1127, 1129 (1986);
see also Enron Oil Trading and Transportation Co. v. United
States, 15 CIT 511, 512 (1991). The presumption may be rebutted
by evidence indicating that notice was not received. In this
instance, the protestant does not dispute the existence of
liquidation extensions. Therefore, the protestant has failed to
rebut the presumption that proper notice was given. In addition,
Customs computer records indicate that two extensions of
liquidation notices were sent to the protestant for each entry.
Inasmuch as proper grounds existed for extension of
liquidation of the subject entries and notices of extension were
issued, the deemed liquidation date for the subject entries was
moved forward to February 5, 1993, for entry 1 and to April 9,
1993, for entry 2.
Section 159.12(d) provides that if an extension has been
granted because Customs needs more information and the district
director thereafter determines that more time is
-5-
needed, he may extend the time for liquidation for an additional
period not to exceed 1 year provided he issues the notice
required by paragraph (b) of this section before termination of
the prior extension period. This additional period will expire 1
year from the expiration of the initial extension, or in other
words it will expire on the third year anniversary of the entry
date. In this case, the second extensions would expire on either
February 5 (entry 1) or April 9 (entry 2), 1994. Section
159.12(e) limits the total time for which extensions may be
granted by the district director to 3 years (i.e., up to four
years from the date of entry).
In this instance, Customs extended the liquidation of the
subject entries for an additional period pursuant to section
159.12(d) for numerous reasons. For instance, Customs inquired
whether the protestant was interested in a Pre-Importation
Review, protestant's counsel indicated to the district that a CF
6431 and application for further review were pending for one of
the chemicals in question, a laboratory report was requested and
issued for one of the chemicals at issue, a CF 28 concerning one
of the subject chemicals was issued, and another inquiry
concerning a Pre-Importation Review was sent and indicates that
such a review was taking place in Boston. Therefore, ample
grounds existed for Customs extension of liquidation for an
additional period. As stated previously, an additional notice of
extension of liquidation was also issued for the subject entries.
19 U.S.C. 1504(d) formerly provided, in part, that 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. The applicable dates specified in subsection
(a) in this case are the dates of entry (i.e., February 5 and
April 9 of 1991). Section 1504(b) was amended by section
641(2)(b) of the NAFTA Implementation Act to provide that any
entry the liquidation of which is extended under this subsection
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 at the expiration of 4 years from the
applicable date specified in subsection (a). Customs liquidated
both of the subject entries on April 16, 1993, which precedes the
expiration of four years from the date of entry. As stated
previously, liquidation of the subject entries was also properly
extended. Therefore, the subject entries were not deemed
liquidated by operation of law, but by the action of Customs on
April 16, 1993.
-6-
HOLDING:
The protest is denied. Liquidation of the subject entries
was properly extended and completed by the actions of Customs on
April 16, 1993.
In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed,
with the Customs Form 19, by your office to the protestant no
later than 60 days from the date of this letter. Any
reliquidation of the entry in accordance with the decision must
be accomplished prior to mailing of the decision. Sixty days
from the date of decision the Office of Regulations and Rulings
will take steps to make the decision available to customs
personnel via the Customs Rulings Module in ACS and the public
via the Diskette Subscription Service, Lexis, Freedom of
Information Act and other public access channels.
Sincerely,
John Durant, Director