LIQ-4-01/11-CO:R:C:E 224778 CB
District Director
U.S. Customs Service
Suite 200
423 Canal Street
New Orleans, LA 70130-2341
RE: Protest and Application for Further Review No. 2002-93-
100105;
deemed liquidation by operation of law; 19 U.S.C. 1504
Dear Sir:
The above-referenced protest and application for further
review was forwarded to this office for further review. We have
considered the points raised and our decision follows.
FACTS:
According to protestant, seven (7) entries of Japanese fish
netting of man-made fibers manufactured by Hakodate Seimo Sengu
Co., Ltd. ("Hakodate") were made between November 12, 1980, and
August 14, 1981. At the time of entry, the subject merchandise was
under a dumping finding published on June 9, 1972. On March 28,
1980, the Department of Commerce published in the Federal Register
(45 F.R. 20511) a notice of intent to conduct administrative
reviews of all outstanding dumping findings.
The final annual review for the entries of fish nets
manufactured in Japan by Hakodate, for the period of June 1, 1980,
through May 31, 1982 was published in the Federal Register on April
30, 1984 (49 F.R. 18339). Commerce's instructions to Customs by
way of telex, indicating that suspension had been lifted and to
proceed with liquidation, was dated May 5, 1984. Certain
instructions were issued to the field, on July 5, 1985, by the
Customs Information Exchange through C.I.E. 321-70, supplement #260
for appraisement of the entries of Hakodate. The field was
instructed to proceed with liquidation of the applicable entries
and to assess a dumping liability on fish netting purchased during
the period of June 1, 1980 through May 31, 1981, and exported by
Hakodate. The record indicates that the merchandise entered under
the subject entries was purchased during the stated period. There
is no additional information to contravene this conclusion.
The subject entries were liquidated on October 23, 1992, with
the assessment of dumping margins at 38.27% and 9.83%.
ISSUE:
Whether the subject entries were deemed liquidated by
operation of law?
LAW AND ANALYSIS:
Liquidation of an entry of merchandise constitutes the final
computation by Customs of all duties (including any dumping or
countervailing) accruing on that entry. See generally, Ambassador
Division of Florsheim Shoes v. United States, 748 F.2d 160, 162
(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 additional information is needed to
classify the goods, liquidation is suspended by statute or court
order, or if the importer, consignee, or his/her agent requests an
extension. Customs must provide the importer with notice of the
extension.
It is protestant's position that the subject entries
liquidated by operation of law, as entered, because liquidation
occurred over four years after the publication of the final results
were published in the Federal Register on April 30, 1984.
Additionally, protestant protests the assessment of dumping margins
at 38.27% and 9.83% because they are in excess of the margins
published.
Initially, it must be noted that when the entries were
originally filed, Customs properly withheld liquidating the entries
of Japanese fish netting because the entries were subject to a
dumping finding in accordance with 19 U.S.C. 1673b(d)(1). On the
entry's first year anniversary date, liquidation continued to be
properly suspended under 19 U.S.C. 1504(b)(2) as required by
statute. See 19 U.S.C. 1673b(d)(1)l see also, Pagoda Trading
Corp. v. United States, 804 F.2d 665 (Fed. Cir. 1986). Before the
entries' fourth year anniversary date (between November 1984 and
August 1985) the statutory basis for suspending liquidation had
expired due to Commerce's issuance of its final results of its
administrative review.
As stated by the Court of International Trade in Nunn Bush
Shoe Co. and Weyco Group Inc. v. United States, Slip Op. 92-9
(February 5, 1992), "[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)." In Nunn Bush, the 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. 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 since the
liquidation was not suspended in any way. Nunn Bush, CIT Slip Op.
92-9, p. 23.
In the present case, the entries were also suspended pursuant
to an administrative review concerning antidumping duties. The
suspensions were also lifted before the fourth-year anniversary
date and Customs liquidated the subject entries after the fourth-
year anniversary had passed. The telex from Commerce to Customs,
which constitutes the lifting of the suspension, was dated May 5,
1984. Thus, the suspension was lifted prior to the fourth year
anniversary of the subject entries. Customs instructions to the
field were not issued until July 5, 1985, more than one year after
the suspension was lifted by Commerce. Thus, there is no
distinction between the situation in Nunn Bush and the present
protest. Therefore, the holding in Nunn Bush is controlling and
the subject entries are deemed liquidated by operation of law on
their fourth-year anniversary.
Protestant also contests, as an alternate claim, the
assessment of dumping margins because they were in excess of the
margins published in the Federal Register. However, since
protestant prevailed on the issue of deemed liquidation, the issue
regarding the assessment of the dumping margins is moot because
additional duties are not assessable on these entries.
HOLDING:
The entries are deemed liquidated as of their fourth-year
anniversaries, respectively. Customs does not have the discretion
to liquidate entries after their fourth-year anniversary if
suspension of liquidation was lifted prior to the fourth-year
anniversary. Therefore, this 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 this decision must be accomplished
prior to the mailing of the decision.
Sixty days from the date of this 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 a tond the public via the Diskette Subscription Service, Lexis
Freedom of Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division