LIQ-4-01-CO:R:C:E 225885 PH
District Director
U.S. Customs Service
1717 East Loop
Houston, Texas 77029
RE: Protest 5301-94-100376; Antidumping Duties; Deemed Liquidation; Time for Liquidation after Removal of Suspension of Liquidation; Canadian Fur Trappers Corp. v. United States; Nunn Bush Shoe Co. v. United States; 19 U.S.C. 1504(d); 19 U.S.C. 1514
Dear Sir:
The above-referenced protest was forwarded to this office for further review. Our decision follows.
FACTS:
According to the file, on March 10, 1988, the protestant entered certain merchandise (certain steel pipe) from India. Antidumping duties in the amount of $4,518 (at a duty rate of 7.08%) were deposited at the time of entry.
The merchandise under consideration was the subject of an antidumping order (case A-533-502; Federal Register of May 12, 1986 (51 FR 17384)). On July 29, 1988, Customs issued instructions ("Antidumping Duties 88-145") regarding the assessment of antidumping duties on certain merchandise, including the merchandise under consideration. These instructions directed the liquidation of all entries in the period May 1, 1987 through April 30, 1988, for all firms for the merchandise covered in case A-533-502, except for three firms (including the manufacturer of the merchandise under consideration).
On June 10, 1991, the Department of Commerce published in the Federal Register (56 FR 26650) preliminary results of administrative review for the period under consideration and the manufacturer of the merchandise under consideration. On December 12, 1991, the Department of Commerce published in the Federal Register (56 FR 64753) final results of administrative review for the period under consideration and the manufacturer of the merchandise under consideration. According to the latter, the dumping margin for the merchandise under consideration was 77.32%. The December 12, 1991, Federal Register document stated "[t]he Department [of Commerce] shall determine, and the United States Customs Service shall assess, antidumping duties on all appropriate entries [and] [t]he Department shall issue appraisement instructions directly to the Customs Service."
Customs did not receive appraisement or liquidation instructions from the Department of Commerce for the merchandise under consideration in the time-period under consideration until March 14, 1994 (Message No. 4073112). In these instructions, Customs officers were instructed to liquidate all shipments of the merchandise under consideration during the period of May 1, 1987, and April 30, 1988, with a dumping duty of 77.32%.
The protested entry was liquidated on April 29, 1994. On June 3, 1994, the protestant filed the protest under consideration. The protestant contended that the entry should have been deemed liquidated by operation of law at the 7.08 antidumping rate deposited at the time of entry. The protestant contended that the basis for suspending the liquidation of the entry terminated when the Department of Commerce published the final results of administrative review for the merchandise under consideration entered in the period when the entry was filed (December 12, 1991, Federal Register notice, see above). Citing 19 U.S.C. 1516a, the protestant contended that since the final results for the manufacturer under consideration were not challenged in court, the antidumping rate was "legally finalized, and ripe for liquidation, starting on January 11, 1992[,] at the latest". The protestant cited Nunn Bush Shoe Co. v. United States, 16 CIT 45, 784 F. Supp. 892 (1992), in support of its arguments.
Further review for the protest was requested and granted.
ISSUE:
May the protest in this case be granted?
LAW AND ANALYSIS:
Initially, we note that the protest was timely filed (i.e., within 90 days of notice of liquidation; see 19 U.S.C. 1514(c)) and that the matter protested is protestable (see 19 U.S.C. 1514(a)(5)).
The controlling statute in this matter, in regard to the issue raised by the protestant, is 19 U.S.C. 1504. This provision was amended by section 641 of Public Law 103-182, the North American Free Trade Agreement Implementation Act (107 Stat. 2057, 2204), enacted December 8, 1993 (the amendment to section 1504 affected by Public Law 103-182 would not be applicable in this case; see, e.g., ruling HQ 225576, November 15, 1994).
Before its amendment, section 1504 provided, in pertinent part, that, except as otherwise provided in the provision, an entry not liquidated within one year from the date of entry was required to 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. The exception to this general rule was that Customs could extend the time for liquidation or suspend the liquidation of the entry (suspension of liquidation referred to cases in which liquidation was suspended as required by statute or court order). When liquidation of any entry was suspended, Customs was required to provide notice of the suspension to the importer of record concerned and to any authorized agent and surety of the importer of record (according to Customs records in this matter, notice of suspension was properly given and is not in controversy). Section 1504(d) provided that any entry not liquidated at the expiration of four years from the date of entry 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, unless liquidation continued to be suspended as required by statute or court order. The subsection also provided that when such a suspension of liquidation was removed, the entry was required to be liquidated within 90 days from the date of removal.
This provision was interpreted in the case of Nunn Bush Shoe Co. v. United States, 16 CIT 45, 784 F. Supp. 892 (1992). The Court held that when the liquidation of entries had been suspended (under the countervailing duty law) and the suspension of liquidation was terminated before the expiration of the four-year period after the date of entry but the entry was not liquidated within that 4-year period, section 1504 "unambiguously" required the entries to be deemed liquidated by operation of law. The Court held that any subsequent attempts to liquidate such entries were invalid. The Court in Nunn Bush distinguished Canadian Fur Trappers Corp. v. United States, 12 CIT 612, 691 F. Supp. 364 (1988), affirmed, 7 Fed. Cir. (T) 136, 884 F. 2d 563 (1989), in which the Court held that when a suspension of liquidation is lifted after the expiration of the four-year period after the date of entry, the 90-day period given in the statute for Customs to liquidate the entries is discretionary, rather than mandatory, and entries liquidated after that 90-day period in such a situation are not deemed liquidated (see also, Eagle Cement Corp. v. United States, 17 CIT ___, Slip Op. 93-117 (June 23, 1993), and Dal-Tile Corp v. United States, 829 F. Supp. 394 (CIT 1993)).
The controlling issue in this case is when the suspension of liquidation was lifted. It is Customs position that a suspension of liquidation is lifted when Customs receives instructions from the Department of Commerce (see, e.g., HQ 225620, March 1, 1995, HQ 225107, September 20, 1994, and HQ 224778, December 23, 1993). In this case, liquidation was pursuant to Department of Commerce instructions after administrative review of the antidumping order for the manufacturer involved for entries in the period involved. The statute providing for such administrative reviews (19 U.S.C. 1675) specifically provides that "[i]f the administering authority orders any liquidation of entries pursuant to a review under [section 1675(a)(1)], such liquidation shall be made promptly and, to the greatest extent practicable, within 90 days after the instructions to Customs are issued. In any case in which liquidation has not occurred within that 90-day period, the Secretary of the Treasury shall, upon the request of the affected party, provide an explanation thereof" (19 U.S.C. 1675(a)(3)(B); emphasis supplied).
In ruling HQ 225107, September 20, 1994 (referred to above, copy enclosed), we thoroughly considered this issue and concluded that the date that Customs received instructions from the Department of Commerce to liquidate entries is the date the suspension of liquidation was lifted. Numerous authorities supporting this position are cited in ruling HQ 225107. This is consistent with the above-quoted statutory language in 19 U.S.C. 1675.
Since in this case the suspension of liquidation was not lifted until more than 4 years after entry, Nunn Bush is inapplicable and Canadian Fur Trappers controls. We note that the protested entry was liquidated promptly after the suspension of liquidation was lifted (less than 2 months). The protest is DENIED.
HOLDING:
The protest is DENIED.
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, with the Customs Form 19, 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
Enclosure