HQ 0222675 - Application for further review of Protest No. 3701-6- 000050 under 19 U.S.C. 1504(d) - United States International Trade Commision Rulings

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HQ 222675

November 7, 1990

LIQ-11-CO:R:C:E 222675 CB

CATEGORY: LIQUIDATION PROTEST

Regional Commissioner
U.S. Customs Service
Suite 1501
55 East Monroe Street
Chicago, ILL 60603-5790

RE: Application for further review of Protest No. 3701-6- 000050 under 19 U.S.C. 1504(d)

Dear Sir:

The above-referenced protest was forwarded to this office for further review. We have considered the points raised and our decision follows.

FACTS:

The subject entry was filed on July 16, 1980. Liquidation of the entry was suspended on July 31, 1980, pursuant to a finding of dumping published in the Federal Register on June 9, 1972. The record indicates that a notice of withheld appraisement was sent out on August 4, 1980. According to the information you have provided, notices of suspension of liquidation were mailed to the importer and surety on June 12, 1981; June 11, 1982; June 17, 1983; and April 27, 1984. The suspension order was lifted on June 27, 1985 and the entry was liquidated on April 4, 1986. According to protestant, CF 4333-As were received from 1982 through 1984. Protestant states that it did not receive any notices in 1981 nor 1985. Protestant received no further notice from Customs until the notice of liquidation dated April 4, 1986.

ISSUE:

Whether the subject entry was deemed liquidated by operation of law?

LAW AND ANALYSIS:

Liquidation of an entry of merchandise constitutes the final computation by Customs of all duties accruing on that entry. As provided in section 504, Tariff Act of 1930, as amended (19 U.S.C. 1504 (1988)), if Customs fails to liquidate an entry
within one year from the date of entry or final withdrawal from warehouse, that entry is deemed liquidated at the rate of duty, value, quantity and amount of duties asserted at the time of entry by the importer, his consignee, or agent. Customs is permitted to extend the one year period, provided for in 19 U.S.C. 1504(b), under certain circumstances: (1) if additional information is needed to classify the goods, (2) liquidation is suspended by statute or court order, or (3) the importer, consignee, or his agent requests an extension. Customs must provide the importer with notice of the extension. Any entry not liquidated at the expiration of four years from the date of entry or withdrawal from warehouse is deemed liquidated at the rate of duty, value, quantity, and amount of duty asserted at the time of entry by the importer, unless liquidation continues to be suspended.

In the instant case, the fact that suspension went beyond the four year limitation does not result in a deemed liquidation. The issue of whether there is statutory authority for a suspension beyond the four year limitation was addressed in American Permac, Inc. and Boewe Maschinenfabrik, GmbH v. United States, 10 Ct. Int'l Trade 535, 642 F. Supp. 1187 (1986). The court held that as long as a suspension continues to be required by statute, it may continue indefinitely. In the instant case, suspension of liquidation is required by 19 U.S.C. 1671b(d). This section provides that if there is an affirmative preliminary determination, the administering authority shall order suspension of liquidation of all entries. In the instant case, the order of suspension was issued, and Customs implemented the same. In American Permac, the court also noted that statutory time limits on administrative acts are directory, rather than mandatory, if the statute does not specify adverse consequences if the time limit is not met.

It is the protestant's position that the entry was deemed liquidated, pursuant to 19 U.S.C. 1504(d), when Customs failed to liquidate the entries within 90 days of the lifting of the suspension. Customs is not required to liquidate an entry within 90 days once a suspension has been lifted. In Canadian Fur Trappers Corp., et al v. United States, 691 F. Supp. 364 (CIT 1988), the Court of International Trade held that the 90 day time frame set forth in said 1504(d) is discretionary rather than mandatory. This holding was affirmed by the Circuit Court on appeal. See Canadian Fur Trappers Corp., and Meldisco, a Division of Melville Corp., v. Unite States, Appeal No. 89-1060, 89-1061, and 89-1062, 23 Cus. Bul. & Dec. 39 (Fed.Cir. 1989). The Circuit Court held that the lack of consequential language in 1504(d) means that Congress intended this section to be only
directory. Therefore, following the Canadian Fur Trappers holding, Customs failure to liquidate the subject entries within 90 days of the lifting of the suspension does not result in a deemed liquidation.

Alternatively, protestant argues that the entry was deemed liquidated because it did not receive CF 4333-As for 1981 and 1985. You have stated that notices of suspension of liquidation were provided to the importer and surety from 1981 through 1985. It is well established that CF 4333-As are merely courtesy notices issued by Customs. Protestant's failure to receive the courtesy notices does not invalidate the suspension of liquidation. Annual notification is not required. The regulation only requires that the importer and surety be promptly notified of the suspension. See 19 CFR 159.12(c). As the record reflects, the Customs Service complied with this requirement.

HOLDING:

There was a proper suspension of liquidation of the subject entry, and the entry did not liquidate by operation of law.

You should deny this protest.

Sincerely,

JOHN DURANT, Director

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