LIQ-4-02-RR:IT:EC 225783 CC
Port Director
U.S. Customs Service
P.O. Box 3130
Laredo, TX 78044-3130
RE: Application for further review of Protest No. 2304-94- 100165; 19 U.S.C. 1504(b), (d); 19 U.S.C. 1671b; countervailing
duties; suspension of liquidation
Dear Sir or Madam:
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:
Six entries are the subject of this protest; the dates of
entry follow: 1/08/92, 3/05/92, 3/12/92, 5/15/92, 6/17/92, and
6/17/92. The entered merchandise consisted of ceramic tiles from
Mexico.
The merchandise at issue was the subject of a countervailing
duty investigation (case C-201-003). In Preliminary Affirmative
Countervailing Duty Determination, published in the Federal
Register on February 23, 1982 (47 FR 7866), Customs was
instructed to suspend liquidation of the subject merchandise
entered on or after the date of publication. In a notice
published in the Federal Register on January 19, 1994 (59 FR
2823), the Department of Commerce revoked the countervailing duty
order with respect to specified companies, one of which was the
manufacturer of the merchandise the subject of this protest. The
Department of Commerce issued liquidation instructions to
Customs, on April 15, 1994, which covered the subject
merchandise, lifting the suspension of liquidation and
instructing Customs to liquidate without regard to countervailing
duties.
In notices of action dated May 5, 1994, Customs informed the
importer that the subject merchandise was classified pursuant to
the Harmonized Tariff Schedule of the United States (HTSUS) under
subheadings requiring duties of 20 percent ad valorem for 2 X 2"
tiles and 19 percent ad valorem for 2 by 6" tiles. As entered,
the subject merchandise was classifiable under subheadings that
entitled it to duty-free treatment under the General System of
Preferences (GSP).
All of the subject entries, except one, were liquidated on
May 20, 1994, with the remaining entry being liquidated on May
27, 1994. The protest was filed on August 19, 1994. The protest
was approved for further review on October 18, 1994.
The protestant protests the "change from GSP-FREE to 19% ad
valorem due to the length of time it took to liquidate from the
date of entry."
ISSUE:
Whether the subject entries were improperly liquidated due
to the length of time from entry until liquidation took place?
LAW AND ANALYSIS:
Initially, we note that the protest was timely filed
pursuant to 19 U.S.C. 1514(c).
In addition, we note that 19 U.S.C. 1504 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 occurred prior to the date
of enactment, the amended law does not apply in this instance.
See HQ 225576 of November 15, 1994.
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. Extension of liquidation is
provided for under 19 U.S.C. 1504, and prior to its amendment,
stated the following:
(b) Extension.--The Secretary 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;
(2) liquidation is suspended as required by
statute or court order; or
(3) the importer of record requests such
extension and shows good cause therefor.
In addition, 19 U.S.C. 1504, prior to its amendment, in
relevant part, stated 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.
When the subject entries were filed, they were subject to a
countervailing duty determination and Customs was instructed to
suspend liquidation of such entries by the Department of
Commerce. See 47 FR 7866 and Customs telegram 01533, dated March
3, 1982, Suspension of Liquidation of Ceramic Tile From Mexico.
Customs computer records for the subject entries list an
extension code of "4," indicating suspension of liquidation due
to an antidumping duty order or countervailing duty order.
Consequently, the subject entries were properly suspended by
statute pursuant to 19 U.S.C. 1671b(d)(1). On the entries' first
year anniversary date and thereafter, liquidation continued to be
properly suspended under 19 U.S.C. 1504(b)(2) as required by
statute; there is nothing alleged by the protestant, nor is there
anything in the file that indicates that the relevant statutes
cited above were not followed in suspending liquidation. Once
the liquidation instructions concerning countervailing duties
were received from the Department of Commerce on April 15, 1994
and suspension of liquidation was lifted, Customs promptly
liquidated the entries within 45 days of the receipt of the
instructions. Consequently, we find that liquidation of the
subject entries was proper; the evidence does not show that the
subject entries were liquidated untimely. Also, liquidation
occurred within four years of the date of entry, and, therefore,
the subject entries cannot be deemed liquidated by operation of
law as entered.
In addition to the length of time in liquidating the
entries, another claim made by the protestant in the protest was
"[w]hen the suspension was lifted, we were under the impression
that we owed no money to U.S. Customs." The applicable statute
provides that only an "appropriate customs officer" can
"ascertain the classification *** applicable to *** merchandise."
19 U.S.C. 1500(b) (1988). B.S. Livingston & Co., Inc. v.
United States, 13 CIT 889, 894 (1989). In addition 19 U.S.C.
1500 provides that the appropriate Customs officer liquidate
the entry and give notice of that liquidation. There is no
evidence or allegations in the file that these actions were not
taken, and, in fact, the file indicates that notice was given to
the importer prior to liquidation as to what the applicable duty
rate would be. In any event, the protestant has not challenged
or protested the tariff classification of the merchandise; only
the length of time in liquidating the entries was protested.
Consequently, no basis exists for allowing this protest.
HOLDING:
The subject entries were properly suspended and then
properly liquidated, and were not deemed liquidated by operation
of law. Therefore, the protest should be DENIED in full.
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,
Director, International Trade
Compliance Division