United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 1993 HQ Rulings > HQ 0221393 - HQ 0222782 > HQ 0222615

Previous Ruling Next Ruling



HQ 222615


July 29, 1991

LIQ-1 CO:R:C:E 222615

CATEGORY: ENTRY LIQUIDATION

District Director
U.S. Customs Service
One Virginia Avenue
Wilmington, North Carolina 28401

RE: Deemed liquidation under 19 U.S.C. 1504(d) of entries involving anti-dumping duties

Dear Sir:

The above-referenced protest has been forwarded to this office for further review. We have considered the points raised by the protestant and your office. Our decision follows.

FACTS:

A series of entries were made between August 18, 1980 and June 24, 1981, at the Wilmington, North Carolina port. The merchandise involved in each entry was viscose staple fibers which are imported from France. On March 21, 1979, the Department of the Treasury published a ruling (T.D. 79-88) to protect against the dumping of viscose staple fibers into the U.S. commerce. Pursuant to the decision, the liquidation of the subject entries was suspended. The suspensions remained intact until May 24, 1983 and June 13, 1984, when the International Trade Administration (ITA) of the Department of Commerce published the findings of two administrative reviews (48 Fed. Reg. 44804 and 49 Fed. Reg. 24427, respectively) which lifted the suspensions. The subject entries were directly affected. They were liquidated on July 21, 1989.

On August 4, 1989, the importer protested the liquidation of all five entries arguing that they liquidated by operation of law, pursuant to the first sentence of 19 U.S.C. 1504(d), on the fourth anniversary of their entry date. According to the protestant, since Customs never extended the liquidation of any entry subsequent to Commerce's instruction to liquidate, the first sentence of 19 U.S.C. 1504(d) provides that the entries be deemed liquidated.

ISSUE:

Whether an entry suspended beyond its first year anniversary liquidates by operation of law on its four-year anniversary date pursuant to 19 U.S.C. 1504(d) if the suspension is lifted prior to that date.

LAW AND ANALYSIS:

19 U.S.C. 1504 provides as follows:

(a) Liquidation.-Except as provided in subsection (b) of this section, an entry of merchandise not liquidated within one year from:

(1) the date of entry of such merchandise; (2) the date of the final withdrawal from warehouse of such merchandise covered by warehouse entry; or
(3) the date of withdrawal from warehouse of such merchandise for consumption where, pursuant to regulations issued under section 1505(a) of this title, duties may be deposited after the filing of an entry or withdrawal from warehouse;
shall be 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. Notwithstanding section 1500(e) of this title, notice of liquidation need not be given of an entry deemed liquidated.

. . .

(d) Limitation.-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, his consignee, or agent, unless liquidation continues to be suspended as required by statute or court order. When such a suspension of liquidation is removed, the entry shall be liquidated within 90 days therefrom.

In the present case, all five entries were suspended from liquidation pursuant to the Antidumping Duty Order covering viscose staple fibers from France. This suspension was in effect for all entries at the time of their first year anniversary. There is no dispute that the suspensions in this case were valid and no contention, therefore, that these entries liquidated by operation of law on their first year anniversary. See, 19 U.S.C. 1504(a).

The protestant claims that since the suspensions were lifted by the Department of Commerce on May 24, 1983, and June 13, 1984, prior to the four-year anniversary date, the entries liquidated by operation of law pursuant to the first sentence of 19 U.S.C. 1504(d) on their fourth anniversary, i.e., August 18, 1984, through June 24, 1985. According to protestant, 19 U.S.C. 1504(d) provides for a deemed liquidation "unless liquidation continues to be suspended as required by statute or court order." Since, in protestant's view, no suspension was required by statute or court order on the fourth year anniversary, the entries liquidated by operation of law. The protestant believes that this fact distinguishes this case from Canadian Fur Trappers v. United States, 691 F. Supp. 364 (CIT), reh'g and motion to amend judgment den'd (unpublished orders dated August 25, 1988), aff'd, 884 F.2d 563 (Fed. Cir. 1989). The importer further believes that its analysis is supported by the holding in Pagoda Trading Corp. v. United States, 804 F.2d 665 (Fed. Cir. 1986). We disagree.

Contrary to protestant's belief, the issue raised here was raised and disposed of in Canadian Fur Trappers v. United States, supra. In that case, as here, several entries were subject to suspensions which were lifted prior to the entries' fourth year anniversary. Indeed, the plaintiffs in Canadian Fur Trappers raised protestant's precise contention concerning 19 U.S.C. 1504(d) in their motions to amend the initial decision of the Court of International Trade. The motions were rejected by the court in unpublished orders on August 25, 1988. While the published opinions do not clearly indicate that protestant's main contention was involved, it was raised and rejected.

On appeal, the plaintiffs in Canadian Fur Trappers again raised the argument that the first sentence of 19 U.S.C. 1504(d) mandated a deemed liquidation for any entry for which a suspension lifted prior to the expiration of the fourth year anniversary. Again, protestant's argument was rejected. While the majority appellate decision is silent on the issue, the concurring opinion does not indicate that the "statute [referring to 19 U.S.C. 1504(d)]. . . does not state what happens if the suspension is terminated more than one, but less than four, years after entry. . ." 884 F.2d at 568. Accordingly, it is our opinion that Canadian Fur Trappers is applicable to these facts and precludes protestant's interpretation of 19 U.S.C. 1504(d).

Similarly, we do not believe that the decision in Pagoda Trading Corp. v. United States, 804 F.2d 665, is applicable to these facts. That case is grounded on 19 U.S.C. 1504(a), which provides for liquidations by operation of law on an entry's first year anniversary except as provided in "subsection (b)" of 19 U.S.C. 1504. Subsection (b) provides, in part, for suspensions of liquidation as required by statute or court order. 19 U.S.C. 1504(b)(2). Since no suspension was in effect on the one year anniversary, the court concluded in Pagoda Trading that subsection (b) was inapplicable and the entries liquidated by operation of law in accordance with 19 U.S.C. 1504(a). Id. at 669. Here, the entries were subject to a suspension order on their first year anniversary. Accordingly, 19 U.S.C. 1504(b) is applicable and the entries are not subject to a liquidation by operation of law pursuant to 19 U.S.C. 1504(a). The only arguably applicable provision mandating a liquidation by operation of law after an entry has been suspended beyond its first year anniversary is 19 U.S.C. 1504(d). As stated above, however, Canadian Fur Trappers rejected this contention.

HOLDING:

The subject entries were not deemed liquidated by operation of law four years after the dates of entry. You are instructed to deny this protest.

Sincerely,

John Durant, Director

Previous Ruling Next Ruling