LIQ-4-01-CO:R:C:E 225620 CC
District Director
U.S. Customs Service
P.O. Box 2450
San Francisco, CA 94126
RE: Protest and Application for Further Review No. 2809-93-101787; deemed liquidation by operation of law; 19 U.S.C.
1504(d); Nunn Bush Shoe Co. v. United States
Dear Sir:
The above-referenced protest was forwarded to this office
for further review. We have considered the facts and issues
raised, and our decision follows.
FACTS:
Customs records show that the entry the subject of this
protest was made on November 30, 1988. The merchandise entered
was 3.5 inch microdisks and coated media from Japan.
The merchandise at issue was the subject of an antidumping
investigation (case A-588-802). In Notice of Preliminary
Determination, published in the Federal Register on September 29,
1988 (53 FR 38045), Customs was instructed to suspend liquidation
of the subject merchandise entered on or after the date of
publication. The Department of Commerce issued instructions to
Customs, in a telex dated September 10, 1992, that suspension of
liquidation for the subject merchandise was lifted. Instructions
for liquidating the subject merchandise were issued to the field
by the Customs Information Exchange by C.I.E. N-41/88, supplement
#10, dated September 23, 1992.
The subject entry was liquidated on May 14, 1993. Customs
made a Formal Demand on Surety on August 2, 1993 for payment of
the subject duties. This protest was timely filed within 90 days
of that action on October 28, 1993 in response to the demand.
ISSUE:
Whether the subject entry was deemed liquidated by operation
of law pursuant to 19 U.S.C. 1504(d)?
LAW AND ANALYSIS:
Liquidation of an entry constitutes the final computation by
Customs of all duties (including any antidumping or
countervailing) accruing on that entry. See generally,
Ambassador Division of Florsheim Shoes v. United States, 748 F.2d
1560, 1562 (Fed. Cir. 1984). The Customs Procedural Reform and
Simplification Act of 1978 provides in section 209(a), 19 U.S.C.
1504, that an entry is deemed liquidated as entered if Customs
has not liquidated the entry within one year from the date of
entry or withdrawal from warehouse. Customs is permitted to
extend the one year period, under 19 U.S.C. 1504(b), if
liquidation is suspended by statute or court order. The subject
entry was suspended pursuant to 19 U.S.C. 1673, pending the
results of an antidumping administrative review.
In addition, 19 U.S.C. 1504, in relevant part states the
following:
(d) Limitation - Any entry of merchandise not
liquidated at the expiration of four years from the
applicable date specified in subsection (a) of this
section, shall be deemed liquidated at the rate of
duty, value, quantity, and amount of duty asserted at
the time of entry by the importer of record, unless
liquidation continues to be suspended as required by
statute or court order. When such a suspension of
liquidation is removed, the entry shall be liquidated
within 90 days therefrom.
The protestant claims that the subject entry was liquidated
by operation of law, as entered, because suspension of
liquidation was lifted with the publication of the final results
in the Federal Register on December 23, 1991, and liquidation
occurred over four years after the entry date. In addition, the
protestant protests, pursuant to the Tariff Act of 1930,
737(a), antidumping duty increases when a "cash deposit" of
0.00% was made.
In Nunn Bush Shoe Co. v. United States, 784 F. Supp. 892
(CIT 1992), entries had been suspended pursuant to an
administrative review of countervailing duties on the
merchandise. The suspensions were lifted prior to the fourth-year anniversaries of the entries, and Customs did not liquidate
those entries until after the fourth-year anniversaries had
passed. The Court held that the entries were deemed liquidated
by operation of law when they became four years old, stating
"[s]ection 1504 unambiguously states that if an entry is not
liquidated within four years, then it will be deemed liquidated
by operation of law unless the period is extended as per 19
U.S.C. 1504(b)(1)-(3)."
The factual situation here is similar to that of Nunn Bush.
The entry was made on November 30, 1988 and liquidation was
suspended pursuant to administrative review of antidumping duties
on the merchandise. Suspension of liquidation is lifted when
Customs receives instructions from the Department of Commerce.
See, HQ 224778 of December 23, 1993. Here, the suspension of
liquidation occurred on September 10, 1992, which was prior to
the fourth-year anniversary of date of entry. Customs did not
liquidate the entry until May 14, 1993, over four years after the
entry date. Consequently, based on Nunn Bush, the entry was
deemed liquidated by operation of law on the fourth-year
anniversary of the entry date, which was November 30, 1992.
The protestant contested, in the alternative, antidumping
duty increases when a "cash deposit" of 0.00% was made. Since
the protestant prevailed on the issue of deemed liquidation, the
issue regarding assessment of dumping margins need not be
addressed because additional duties cannot be assessed on this
entry.
Finally, we note that 19 U.S.C. 1504(d) was amended by
section 641, title VI - Customs Modernization, Public Law 103-182, the North American Free Trade Agreement Implementation Act
(107 Stat. 2057), enacted December 8, 1993. Title VI of Public
Law 103-182 took effect on the date of enactment of the Act
(section 692 of the Act). Since entry and liquidation occurred
prior to the date of enactment, clearly the amended law does not
apply in this instance.
HOLDING:
The subject entry is deemed liquidated, pursuant to 19
U.S.C. 1504 and Nunn Bush, on the fourth-year anniversary of the
entry date. Consequently, the protest should be ALLOWED.
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 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 the 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, Freedom of Information Act
and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division