LIQ-4-01/LIQ-11 RR:IT:EC 227653 CB
Port Director
U.S. Customs Service
1624 7th Avenue
Tampa, FL 33605-3706
Attn: Bruce W. Ingalls
Chief, Trade Compliance
RE: Protest and Application for Further Review No. 1801-95-100014; Antidumping Duties;
Deemed Liquidation; Time for Liquidation after Removal of
Suspension of Liquidation;
19 U.S.C. 1504(d); 19 U.S.C. 1514
Dear Sir/Madam:
The above-referenced protest was forwarded to this office for a
determination. We have considered the points raised and a
decision follows.
FACTS:
According to the file, the importer entered certain
merchandise (circular welded carbon steel pipes and tubes) from
Taiwan. The entry date is May 5, 1984. The merchandise was
subject to an antidumping order (49 Fed. Reg. 19369, May 7,
1984). Protestant posted a bond to secure the estimated
antidumping duties due on the entry. Liquidation was suspended
and a notice was issued on June 29, 1984.
The entry was liquidated on November 25, 1994 with an
increase of $4,286.14 representing the antidumping duties owing
on the entry. Protestant contends that the subject entry deemed
liquidated on May 17, 1988 (sic), the fourth year anniversary.
Protestant contends that because no annual administrative review
was conducted for the time period covering the subject entry, and
no appeal was taken to the Court of International Trade with
respect to the subject entry, the entry deemed liquidated as
entered.
ISSUE:
May the subject protest be granted?
LAW AND ANALYSIS:
Initially, we note that the protest was timely filed (i.e.,
within 90 days from the date of liquidation). See, 19 U.S.C.
1514(c)(2). The decision protested is protestable under 19
U.S.C. 1514(a)(5).
Under 19 U.S.C. 1504, as amended (see section 641, Pub. L.
No. 103-182, 107 Stat. 2204), an entry not liquidated within
one year 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
is extended, as provided in that section, or suspended as
required by statute or Court order. Under section 1504(c), "[i]f
the liquidation of any entry is suspended, the Secretary shall,
by regulation [see 19 CFR 159.12], require that notice of the
suspension be provided, in such manner as the Secretary considers
appropriate, to the importer of record and to any authorized
agent and surety of such importer of record." Under section
1504(d), "[w]hen a suspension required by statute or court order
is removed, the Customs Service shall liquidate the entry within
6 months after receiving notice of the removal from the
Department of Commerce, other agency, or a court with
jurisdiction over the entry. Any entry not liquidated by the
Customs Service within 6 months after receiving such notice 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."
In the instant case, the protestant asserts that the subject
entry liquidated by operation of law no later than May 17, 1988,
because no annual administrative review was conducted for the
time period covering the subject entry. The date of entry was in
May of 1984, liquidation of the entry was properly suspended
within one year of the date of entry (date of notice of
suspension: June 29, 1984)(see International Cargo & Surety
Insurance Co. [Data Memory Corp.] v. United States, 15 CIT 541,
779 F. Supp. 174 (1991) and Enron Oil Trading and Transportation
Co. v. United States, 15 CIT 511 (1991), vacated 988 F.2d 130
(Fed. Cir. 1993), and rulings HQ 224792 and 224793)),
suspension of liquidation was not lifted until more than 4 years
after entry (June 10, 1994), and liquidation was promptly
thereafter (November 25, 1994). Since liquidation was after the
effective date (December 8, 1993) of the amendments to 19 U.S.C.
1504(d) effected by Pub. L. No. 103-182 (see above), that
statute controls in regard to the issue of the time for
liquidation after the suspension of liquidation was lifted. The
protested entry was liquidated within 6 months after Customs
received notice of the removal of the suspension of liquidation,
as required by the amended section 1504(d). Thus, the subject
protest must be denied.
Additionally, as previously stated, protestant asserts that
the entry deemed liquidated because there was no annual
administrative review. However, protestant does not provide any
legal basis or case law which supports this conclusion. The fact
that no annual administrative review was conducted for the time
period covering the subject entry has no bearing on when
liquidation is effected. Suspension of liquidation remains in
place until such time as Commerce
issues instructions to Customs advising that it can proceed with
liquidation. In the instant case, such instructions were not
issued until June 10, 1994.
Generally, we have held that the role of Customs in the
antidumping process is "... simply to follow Commerce's
instructions in collecting deposits of estimated duties and in
assessing antidumping duties, together with interest, at the time
of liquidation" (see HQ 225382, July 3, 1995; see also,
Mitsubishi Electronic America Inc. v. United States, 44 F.3d
973 (Fed. Cir. 1994)). However, if Customs fails to follow the
instructions of the Department of Commerce, that failure may be
subject to protest under 19 U.S.C. 1514. In the instant case,
there is no allegation that Customs failed to follow Commerce's
liquidation instructions but, rather, protestant seems to be
challenging Commerce's decision to suspend liquidation for an
extended period of time. This is not a protestable issue under
19 U.S.C. 1514.
HOLDING:
The subject protest should be 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 A. Durant, Director
Commercial Rulings Division