LIQ-4/11-CO:R:C:E 225239 AJS
District Director of Customs
U.S. Customs Service
Key Tower Bldg. #2200
1000 2nd Avenue
Seattle, WA 98104-1049
RE: Protest 3001-93-100711; extension of liquidation; 19 U.S.C.
1504(a); 19 U.S.C. 1504(b); HQ 224294; HQ 225162;
19 CFR 159.12(d); 19 CFR 159.12(e); 19 U.S.C. 1504(d); Pagoda
Trading Co. v. U.S.; Nunn Bush Shoe Co. v. U.S.; Inter- national
Cargo & Surety Ins. Co. v. U.S.; 19 CFR 353.26(b).
Dear District Director:
This is our decision in Protest 3001-93-100711, dated October
22, 1993, concerning extension of liquidation.
FACTS:
On August 28, 1986, a Federal Register notice was published
for wax candles from the People's Republic of China (PRC) under
Antidumping Duty Order (A-570-504). 51 Fed. Reg. 30,686. On
August 8, 1990, a Federal Register Notice was published affording
an "Opportunity to Request Administrative Review" for the entry
period August 1, 1989 through July 31, 1990 for the subject wax
candles. 55 Fed. Reg. 32,279. This notice states that if the
Department of Commerce (DOC) did not receive by August 31, 1990, a
request for review of entries covered by an order or finding listed
in this notice and for the period identified above, the DOC will
instruct Customs to assess antidumping or countervailing duties on
those entries at a rate equal to the cash deposit of (or bond for)
estimated antidumping or countervailing duties required on those
entries at the time of entry and to continue to collect the cash
deposits previously ordered.
The subject wax candles were entered on October 13, 1989, with
a claimed country of origin of Macao. The protestant claims that
the DOC indicated that no such
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requests were made under the August 8 notice and that the DOC
contacted Customs on September 8, 1990, terminating liquidation
suspension for entries covered by the review period. After a
lengthy overseas investigation, Customs subsequently determined
that the country of origin for the subject candles was the PRC, and
that as such they were subject to Antidumping Order A-570-504. The
importer was informed of this determination by a Customs Form (CF)
29, Notice of Action, on February 3, 1993. Notices for extension
of liquidation were also issued on June 30, 1990, June 22, 1991 and
June 20, 1992, while Customs was awaiting information concerning
the assessment of duties on the subject entry. Also, an additional
notice was issued in February of 1993 to indicate a change in the
entry type code to indicate the entry was subject to antidumping
duties. The subject entry was liquidated on September 3, 1993.
On February 19, 1993, the protestant was forwarded a
"Reimbursement of Dumping Duties" form. On February 23, 1993, the
protestant declined to sign this form and stated that it would
attempt to be reimbursed for antidumping duties assessed in this
case. On June 16, 1993, protestant's counsel stated "[t]hat the
importer herein attests that no agreement or understanding for
reimbursement of any kind was consummated for the instant
shipment."
ISSUE:
Whether the subject entry was deemed liquidated pursuant to 19
U.S.C. 1504(a) or properly extended and liquidated by the actions
of Customs.
LAW AND ANALYSIS:
Initially, we note that this protest was timely filed pursuant
to 19 U.S.C. 1514(c)(2)(A). The entry was liquidated on September
3, 1993, and this protest was filed on October 22, 1993. We also
note that the liquidation of an entry is protestable pursuant to 19
U.S.C. 1514(a)(5).
19 U.S.C. 1504(a)(1) provides that except as provided in
subsection (b) of this section, an entry of merchandise not
liquidated within one year from the date of entry (i.e., October
13, 1990) of such merchandise 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. The subject entry was
liquidated more than one year after the date of entry. Thus, the
protestant asserts that the subject entry was deemed liquidated
pursuant to section 1504(a)(1).
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19 U.S.C. 1504(b), however, provides that the Secretary of the
Treasury 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. 19 CFR 159.12(a)(1) provides
that the district director may extend the 1-year statutory period
of liquidation for an additional period not to exceed 1 year if
information needed by Customs for the proper appraisement or
classification of the merchandise is not available. Customs
previously stated that this additional 1-year period expires 1 year
from the expiration of the 1-year statutory period for liquidation
(i.e., October 13, 1991). HQ 224294 (January 10, 1994) and HQ
225162 (May 20, 1994).
A search of Customs computer records indicates that
liquidation of the subject entry was extended three times and that
notice of these extensions was also issued. An extension was
issued on June 30, 1990, June 22, 1991, and June 20, 1992. The
entry was extended because Customs needed information for the
proper appraisement of the merchandise. The protestant claims that
it found no evidence that notices of extension were ever sent, but
offers no specific evidence to support this statement. A later
notice was also sent informing the protestant that the entry was
subject to antidumping duty.
19 CFR 159.12(d) provides that if an extension has been
granted because Customs needs more information and the district
director thereafter determines that more time is needed, he may
extend the time for liquidation for an additional period not to
exceed 1 year provided he issues the notice required by paragraph
(b) of this section before termination of the prior extension
period. Customs previously stated that this additional period will
expire 1 year from the expiration of the initial extension, or in
other words it will expire on the third year anniversary of the
entry date (i.e., October 13, 1992). See supra HQ 224294 & HQ
225162. Section 159.12(e) provides that the total time for which
extensions may be granted may not exceed 3 years (i.e., up to four
years from the date of entry). Therefore, if a third extension is
issued it will expire on the fourth year anniversary of the date of
entry (i.e., October 13, 1993). In this instance, Customs extended
liquidation of the subject entries for two additional periods not
exceeding one year because more information was needed. The total
time for which extensions were granted did not exceed three years.
Accordingly, Customs satisfied the regulatory requirements of
section 159.12.
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19 U.S.C. 1504(d) provides, in part, that 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. The applicable date specified in subsection (a) in this
case is the date of entry (i.e., October 13, 1989). Customs
liquidated the subject entry on September 3, 1993, which precedes
the expiration of four years from the date of entry (i.e., October
13, 1993). As stated previously, a proper basis also existed for
extension of liquidation. Thus, Customs also satisfied the four-
year liquidation requirement of section 1504(d). Consequently, the
subject entry was not deemed liquidated by operation of law, but by
the actions of Customs on September 3, 1993.
The protestant cites to Pagoda Trading Co. v. United States,
9 CIT 407 (1985), aff'd, 5 Fed. Cir. (T) 10 (1986), in support of
its claim. In that case, the DOC instructed Customs to lift
suspension of liquidation before the one year anniversary of entry.
Id at 408. Customs then issued notices for suspension of
liquidation before the one-year anniversary of entry. Id. Customs
intended these notices to be extensions and did not know why these
notices were sent. Id at 411. The CIT found that notices of
suspension were not effective to serve as notices of extension and
that there was also no basis for any extensions. Id. Thus, the
CIT held that the entries were deemed liquidated on the one year
anniversary of entry. Id.
This protest is markedly different from the decisions rendered
in Pagoda. While each case initially involved suspensions of
liquidation, three notices of extension were issued in this protest
and a proper basis existed for these notices. The Pagoda decisions
did not state that Customs could not have issued extensions if a
proper basis existed for such extensions. Therefore, we do not
find the decision in Pagoda supportive of the protestant's claim.
The protestant also cites to Nunn Bush Shoe Co. v. United
States, 784 F. Supp. 892 (1992), in support of its claim. In that
case, entries were suspended pending the results of a
countervailing duty investigation and later pursuant to court
injunctions. Id at 893. These injunctions were dissolved before
the entries were four years old, but Customs did not liquidate
certain of these entries until after four years from the date of
entry. Id. We note that
the subject protest does not involve an entry liquidated more
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than four years after the date of entry. Therefore, an important
factual difference exists between this protest and the Nunn Bush
case.
The CIT in Nunn Bush stated that "[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)." Id at 894-95. This
statement leads to the conclusion that Customs may extend
liquidation of an entry after a suspension as long as the extension
does not exceed the statutory four-year period. This is exactly
what procedure Customs followed in this protest. The CIT in Nunn
Bush did not state that Customs could not extend liquidation of an
entry after a suspension is lifted. Accordingly, despite
protestant's assertion to the contrary, we find the decision in
Nunn Bush supportive of Customs position in this protest.
The Court of International Trade (CIT) recently addressed an
issue more similar to this protest in International Cargo & Surety
Ins. Co. v. United States, 15 CIT 541 (1991). See also HQ 224397
(March 8, 1994) and HQ 225027 (June 14, 1994). In that case,
Customs Headquarters directed all district directors to withhold
liquidation of entries pending the reconsideration of a
classification decision. The merchandise at issue was then entered
and Customs issued notices extending liquidation of the entry.
International Cargo denied receiving notice. After resolving the
classification issue, Customs issued guidelines for classification
based on the design and use of the merchandise and directed
district directors to resume liquidation. The district required
information concerning the design and use of the merchandise and
issued a Request for Information to the importer. The importer
failed to respond so the district issued a Notice of Action more
than 3 months later and then subsequently liquidated the entry.
In International Cargo, Customs submitted computer records
establishing that extension notices were printed on a certain date
and the reason for these notices. Id. at 544. As a routine
matter, the CIT noted that notices are printed on a Saturday or
Sunday and mailed the following Tuesday. Id. The CIT recognized
that "[g]overnment officials are entitled to a presumption that
their duties are performed in the manner required by law." Id. In
that case, the CIT concluded that a presumption had arisen that
proper notice was given. The CIT further stated that "[t]he
presumption is not conclusive, and may be rebutted by a declaration
or other
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evidence indicating that notice was not received." The CIT noted
that it had previously concluded that an affidavit from the
importer's recordkeeper, stating that an extension notice had not
been received, was sufficient to rebut the presumption. Id. Since
no such evidence was submitted, after concluding that the extension
was permissible under the statute, the CIT held for Customs. Id at
545.
In this protest, Customs possesses similar computer records
indicating the date of extension, date notice was sent, and the
reason for such extension. The protestant asserts that it found no
evidence that notices were ever sent, but did not provide any
evidence to support this assertion. As the CIT concluded in
International Cargo, we do not find this assertion sufficient to
rebut the presumption that notice was given. As stated previously,
proper grounds also existed for the notice of extension.
Therefore, we conclude that proper notice of extension was given in
this case. Consequently, the subject entry was not deemed
liquidated by operation of law pursuant to section 1504(a), but
rather was extended and properly liquidated by Customs on September
3, 1993.
19 CFR 353.26(b) requires the importer to file prior to
liquidation a reimbursement statement with the appropriate district
director. Counsel for the protestant asserts that it should be
permitted to sign this statement on behalf of the importer. The
Customs Form 6445A states the DOC's position in this matter is that
the only acceptable signature on the reimbursement statement is
that of the importer. This issue is within the jurisdiction of the
Secretary of Commerce. 19 U.S.C. 1514(a) specifies the types of
decisions by a customs officer which may be protested. The proper
party for signing a statement under section 353.26(b) is not one of
these decisions. Therefore, this matter is not subject to protest.
Counsel states that the reimbursement form need only be
executed should Customs find that antidumping duties are actually
owed. Counsel states that a mere belief by the government that the
subject shipments are covered by an antidumping order may not
automatically be equated with the conclusion that said duties can
be lawfully exacted. Counsel concludes that a finding of deemed
liquidation would effectively bar such action. Customs conducted
a detailed investigation and determined that the country of origin
of the subject merchandise is the PRC. Counsel merely claims that
the merchandise was sourced in Macao, and provided no specific
information to dispute Customs determination.
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Entries of the subject merchandise from the PRC are subject to
antidumping duties. As stated previously, the importer is required
to file a reimbursement form concerning any assessed antidumping
duties prior to liquidation. Therefore, the protestant was
required to file a reimbursement form when requested by Customs.
In addition, inasmuch as deemed liquidation did not occur in this
instance, counsel's point concerning this issue is moot.
Counsel also claims that the subject candles are not subject
to the antidumping duty order at issue. 19 CFR 353.22 provides the
procedure for an importer to challenge whether it is subject to an
antidumping duty order. Accordingly, the protestant is required to
challenge the application of the subject antidumping duty order
under this procedure and not under 19 U.S.C. 1514.
HOLDING:
The protest is denied. Notices for extension of liquidation
were properly issued and thus the subject entry was properly
liquidated on September 3, 1993.
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 with the Customs Form 19, 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 this 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