LIQ-4-02/LIQ-11/BON-2-RR:IT:EC 226215 PH
Port Director
U.S. Customs Service
Second and Chestnut Streets
Philadelphia, Pennsylvania 19106
RE: Protest 1101-95-100182; Countervailing Duties; Deemed
Liquidation; Interest; Surety Protest; 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 August 17 and
September 26, 1988, the importer of record entered certain
merchandise (black steel pipe) from Thailand (according to the
information in the file, the merchandise was exported from
Thailand between January 1 and December 31, 1988). The entry
summary dates for the entries were, respectively, September 8 and
October 11, 1988, and the dates of collection were, respectively,
September 14 and October 11, 1988. The merchandise was entered
as being subject to antidumping duties (A549-502, with a duty
rate of 13.88%) and countervailing duties (C549-501, with a duty
rate of 1.79%). Countervailing duties (at the above-described
rate) in the amount of $13,194.83 were deposited for the August
17, 1988, entry and $3,385.18 were deposited for the September
26, 1988, entry. The surety for the entry was the protestant.
The merchandise under consideration was the subject of a
Countervailing Duty Order (case C-549-501) (Federal Register
notice of August 14, 1985 (50 FR 32751)) (the merchandise was
also the subject of an Antidumping Duty Order (case A-549-502)
(Federal Register notice of March 11, 1986 (51 FR 8341) for which
liquidation instructions had already been issued (message
2188117, July 6, 1992)) (this protest and ruling concern only the
countervailing duties). In the Countervailing Duty Order it was
stated that a cash deposit of estimated countervailing duties (at
the rate of 1.79%) was being required on all entries effective
August 14, 1985. In a message (4228114) dated August 16, 1994,
instructions were issued "to liquidate at 2.86 percent ... all
shipments of circular welded pipes and tubes from Thailand ex-
ported on or after January 1, 1988 and on or before December 31,
1988." The message also instructed that interest, as provided
for in 19 U.S.C. 1677g, be paid, calculated from the date of
payment of estimated duties through the date of liquidation.
The message described above (4228114, dated August 16, 1994),
noted that litigation involving the administrative review of the
Countervailing Duty Order on the subject merchandise for the
period January 1, 1988, through December 31, 1988 had been
dismissed. In this regard, see Saha Thai Steel Pipe Co., Ltd. v.
United States, 828 F. Supp. 57 (CIT 1993); Wheatland Tube Corp.
v. United States, 841 F. Supp. 1222 (CIT 1993); and Saha Thai
Steel Pipe Co., Ltd. v. United States, 879 F. Supp. 1331 (CIT
1995). Note that in the 1995 case, the Court stated, about the
two 1993 cases, "... this Court has upheld Commerce's final
countervailing duty determinations in [the cited 1993 cases]
[and] [t]hese decisions were not appealed and are therefore
final" (879 F. Supp. at 1337).
According to Customs records, liquidation of the entries under
consideration was suspended, with the date of the notices of
suspension being March 25, 1989. According to Customs records,
notice of suspension was issued to the importer of record and the
surety-protestant.
In the file there is a copy of a Rate Advance (Customs Form 29),
dated September 2, 1994, stating it was intended to advance
duties to reflect the countervailing duties of 2.86% for both of
the entries. The entries were liquidated on October 28, 1994,
with liquidated countervailing duties in the amount of $21,082.51
for the August 17, 1988, entry and $4,039.87 for the September
26, 1988, entry. Demand in the amount of $22,773.86 (plus
interest) (for the August 17, 1988, entry) and $1,150.51 (plus
interest) (for the September 26, 1988, entry) was made on the
surety-protestant on January 1, 1995. The protest under
consideration was filed on March 30, 1995. 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, as amended (see section 641, Public Law
103-182; 107 Stat. 2204), an entry not liquidated within one year
from the date of entry (as pertinent in this case) 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."
Section 1504(d), before its amendment by Public Law 103-182, 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)).
In this case, the dates of entry were in August and September of
1988, liquidations of the entry were properly suspended within
one year of the dates of entry (date of notices of suspension:
March 25, 1989) (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 224397), suspension of
liquidation was not lifted until more than 4 years after entry
(August 16, 1994), and liquidation was promptly thereafter
(October 28, 1994). Since liquidation was after the effective
date (December 8, 1993; section 692, Public Law 103-182) of the
amendments to 19 U.S.C. 1504(d) effected by Public Law 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 entries were liquidated within 6 months
after Customs received notice of the removal of the suspension of
liquidation, as required by the amended section 1504(d). In ad-dition, we note that the liquidations also met the requirements
under the above described Court cases (Nunn Bush and Canadian Fur
Trappers) or 19 U.S.C. 1504(d). The protest is DENIED in regard
to deemed liquidation issues under 19 U.S.C. 1504.
In regard to the question of the assessment of interest in this
case, we note that under 19 U.S.C 1677g(a), interest shall be
payable on overpayments or underpayments of amounts deposited on
merchandise entered, or withdrawn from warehouse, for consumption
on and after the date of publication of a countervailing or
antidumping order or the date of a finding under the Antidumping
Act, 1921. This provision has been interpreted to require
interest only when a cash deposit is required (see Timken Co. v.
United States, 15 CIT 526, 777 F. Supp. 20 (1991); 19 CFR
355.24). Furthermore, we note that under ABC International
Traders, Inc. v. United States, CIT Slip Op. 95-97 (Court No. 94-04-00242, May 23, 1995); Mitsubishi Electronics America Inc. v.
United States, 44 F. 3d 973 (Fed. Cit. 1994); and Nichimen
America v. United States, 9 Fed. Cir. (T) 103, 938 F. 2d 1286
(1991)), the assessment of interest on such overpayments or
underpayments of countervailing duties, when assessed pursuant to
instructions from the Department of Commerce, is not
challengeable by protest under 19 U.S.C. 1514 (see, e.g., ruling
HQ 225382, July 3, 1995). The protest is DENIED in this regard.
The remaining issues purportedly raised in this protest consist
of assertions without specificity, arguments, or evidence (e.g.,
"the liquidation and/or reliquidation, appraised value,
classification and rate and amount of duties chargeable, and all
charges or exactions on the articles entered under cover of the
captioned entries and all decisions of the district director
pertaining thereto", and separate assertions as to the appraised
value, improper classification, as well as assertions regarding
the sufficiency of the bond involved). In the case of the
latter, we note that, according to Customs records, the surety-protestant was surety on a continuous bond for the importer of
record for the protested entries in the amount of $400,000 at the
time of the entries under consideration and that there is no
evidence that the demands against the surety are in excess of the
principal amount of the bond.
In regard to the issues described in the preceding paragraph, we
note that under 19 U.S.C. 1514(c)(1), a protest of a decision
must set forth distinctly and specifically each decision as to
which protest is made and the nature of each objection and
reasons therefor. See generally, United States v. Parksmith
Corp., 62 CCPA 76, 514 F. 2d 1052, C.A.D. 1149 (1975), and United
States v. E. H. Bailey & Co., 32 CCPA 89, C.A.D. 291 (1945) ("...
a protest is not sufficient under the statute which alleges
merely that the amount of duties assessed by the collector is
erroneous[;] [s]uch a blanket form, if sufficient, could be used
in every case" (32 CCPA at 98)). As is true of the statute and
Court decisions interpreting the statute (see above), the Customs
Regulations require that a protest set forth the nature of, and
justification for the objection distinctly and specifically with
respect to each claim (19 CFR 174.13(a)(6)). The protest is
DENIED in this regard.
HOLDING:
The protest is DENIED (liquidation was properly suspended,
suspension of liquidation was not lifted until more than 4 years
after entry, liquidation was promptly thereafter (within 6 months
of the time that Customs received notice of the removal of the
suspension of liquidation), a cash deposit of countervailing
duties was required and assessment of interest was pursuant to
instructions from the Department of Commerce, and no substantial
arguments or evidence are provided in support of any other issue
purportedly raised).
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,
Acting Director
International Trade Compliance Division