LIQ-4-01/LIQ-11/BON-2-RR:IT:EC 226207 PH
Area Port Director
U.S. Customs Service
# 1 La Puntilla
San Juan, Puerto Rico 00901
RE: Protest 4909-93-100104; Protest 4909-93-100064; Failure to
Give Notice of Suspension of Liquidation to Surety; 19
U.S.C. 1504; 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 and Customs records, on February 15, 1990,
the importer of record entered certain merchandise (aluminum
sulfates) from Venezuela. Countervailing duties in the amount of
$1,806.90 were deposited (in the file there is a copy of a check
dated May 3, 1990, in this amount from the importer of record to
the Customs Service). A "Dumping Bond", executed on May 8,
1990, with the importer of record as principal and the protestant
(Washington International Insurance Company, Surety No. 891) as
surety is in the file. The limit of liability is $24,700. In
the "file reference" block of the bond form, the last five digits
(not including the check digit) of the protested entry are
listed. The "Identification of transaction secured by this bond
(e.g., entry no., seizure no., etc.)" block of the bond form is
left blank. Also in the file is the import bond, executed
February 14, 1990, for the entry. The "file reference" block of
this bond is left blank, and the entire entry number is stated in
the "Identification of transaction secured by this bond (e.g.,
entry no., seizure no., etc.)" block of the bond form.
The merchandise under consideration was the subject of an
Antidumping Duty Order (case A-307-801) (Federal Register notice
of December 15, 1989 (54 FR 51442), and a Countervailing Duty
Order (case C-122-807) (Federal Register notice of December 19,
1989 (54 FR 51908)). In the Antidumping Duty Order Federal
Register notice it was stated that a cash deposit, with a margin
of 259.17%, was being required on all entries of the merchandise
effective December 15, 1989. In the Countervailing Duty Order it
was stated that a cash deposit of estimated countervailing duties
(at an "all other" rate of 19.03%) was being required on all
entries effective December 19, 1989. In a telex dated December
6, 1991, the suspension of liquidation on the basis of the
Antidumping Duty Order for entries between December 1, 1989, and
November 30, 1990, was lifted, effective "immediate[ly]". The
suspension of liquidation on the basis of the Countervailing Duty
Order for entries between January 1, 1990, and December 31, 1990,
was lifted by message of April 28, 1992.
According to Customs records, liquidation of the entry was
suspended, with the date of the notice of suspension being May
19, 1990. According to Customs records, notice of suspension was
issued to the importer of record and the surety listed on the
entry summary (International Cargo & Surety Ins., code no. 422).
There is no evidence of notice of suspension to the protestant-surety (code no. 891).
The entry was liquidated on September 4, 1992, with liquidated
duties in the amount of $26,415.09. Demand in the amount of
$32,898.66 was made on the protestant-surety on April 21, 1993.
The protest under consideration was filed on June 10, 1993
(according to documents in the file, the initially filed protest
(numbered 4909-93-100064) was lost and replaced by protest 4909-93-100104). Further review 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 the demand upon the protestant surety; see 19
U.S.C. 1514(c)(3)) and the matter protested is protestable (see
19 U.S.C. 1514(a)(5)). The certification that the protest is not
being filed collusively to extend another authorized person's
time to protest, as required for a protest by a surety (see 19
U.S.C. 1514(c)(3)), was provided.
Under 19 U.S.C. 1504(c), "[i]f the liquidation of any entry is
suspended, the Secretary shall, by regulation, require that
notice of such suspension be provided to the importer of record
concerned and to any authorized agent and surety of such importer
of record."
The Customs Regulations issued under this statute are found in 19
CFR 159.12. Under section 159.12(c), "[i]f the liquidation of an
entry is suspended as required by statute or court order ... the
port director promptly shall notify the importer or the consignee
and his agent and surety ...."
In this case, according to Customs records, no notice of
suspension was issued to the surety-protestant. Such notice is
required both by statute and regulations (see Old Republic
Insurance Co. v. United States, 10 CIT 589, 645 F. Supp. 943
(1986). In the absence of notice to the surety-protestant, when
the demand on the surety was timely protested, as in this case,
we have no choice but to grant the protest (see Old Republic,
supra; see also United States v. Cherry Hill Textiles, Inc., 888
F. Supp. 1202 (CIT 1995).
This does not mean that the entry should be reliquidated as to
the importer of record or the surety to which notice of
suspension was issued. According to Customs records, those
parties were given proper notice of suspension (see, e.g.,
International Cargo & Surety Insurance Co. (Data Memory Corp.) v.
United States, 15 CIT 541, 779 F. Supp. 174 (1991)).
Furthermore, insofar as we are aware, neither the importer of
record nor the surety to which notice of suspension was issued
has timely protested the liquidation of the entry under
consideration, so that, under 19 U.S.C. 1514(a) the liquidation
is final as to those parties.
HOLDING:
The surety-protestant was given no notice of suspension of
liquidation for the entry under consideration and the entry was
liquidated more than 1 year after the date of entry. The protest
is GRANTED, and the demand on the surety-protestant should be
canceled.
The protest is GRANTED. 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. 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,
Acting Director
International Trade Compliance Division