HQ 0223922 - Protest #1801-91-000060 concerning deemed liquidation of entries suspended beyond first-year anniversary and lifted before fourth-year anniversary; 19 U.S.C. 1504(d); Nunn Bush and Weyco Group, Inc. v. United States, CIT slip op. 92-9 (February 5, 1992). - United States International Trade Commision Rulings

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HQ 223922

November 18, 1992

LIQ-11 CO:R:C:E 223922 TLS

CATEGORY: ENTRY

District Director
U.S. Customs Service
4430 E. Adamo Suite C-100
Tampa, Florida 33605

RE: Protest #1801-91-000060 concerning deemed liquidation of entries suspended beyond first-year anniversary and lifted before fourth-year anniversary; 19 U.S.C. 1504(d); Nunn Bush and Weyco Group, Inc. v. United States, CIT slip op. 92-9 (February 5, 1992).

Dear Sir:

The above-referenced protest has been forwarded to this office for further review. We are returning the original entry papers. In the future, original entry papers should not be sent with the application for further review. See Customs Directive 3550-39 of January 16, 1991 (Protest Processing). We have considered the points raised by the protestant and your office. Our decision follows.

FACTS:

This case involves two entries that were entered on February 9 and 20, 1981. Liquidation was suspended on the entries pursuant to a Department of Commerce administrative review of countervailing duties on the subject merchandise. The review was completed and the findings were published on January 6, 1984. The Customs Director of Commercial Operations subsequently instructed Customs field offices to liquidate the entries pursuant to the findings. The subject entries were liquidated on August 16 and 23, 1991, respectively.

The protestant has applied for further review of your decision to deny its protest. You state your denial to be based on the court decision in Canadian Fur Trappers Corp. v. United States, 691 F. Supp. 96 (CIT 1988), aff'd, 884 F.2d 563 (Fed. Cir. 1989). That decision held that the 90-day period in which Customs has to liquidate an entry on which suspension had been lifted after its fourth-year anniversary is discretionary and not mandatory.

ISSUE:

Whether an entry is deemed liquidated when a suspension is lifted from it after its first-year anniversary but prior to its fourth-year anniversary.

LAW AND ANALYSIS:

The Canadian Fur Trappers decision addresses situations where the suspension was lifted after the fourth-year anniversary had passed and the 90-day period under 19 U.S.C. 1504(d) was to take effect. In this case, the suspension was lifted prior to the fourth-year anniversary; thus, the Canadian Fur Trappers decision is not applicable here.

The Court of International Trade (CIT) has ruled on a case similar to the case at hand. The court has recently held that entries on which suspensions had been lifted prior to their fourth-year anniversary shall be deemed liquidated by operation of law on the fourth-year anniversary date. Nunn Bush Shoe Company and Weyco Group, Inc. v. United States, CIT slip op. 92- 9 (February 5, 1992).

In Nunn Bush, the entries had been suspended pursuant to administrative review of countervailing duties on the merchandise. The suspensions were lifted prior to the fourth- year anniversaries of the entries. Customs did not liquidate those entries until after the fourth-year anniversaries had passed. At trial, Customs had argued that it was not compelled by statute to liquidate the entries before the fourth-year anniversary. It cited to Canadian Fur Trappers to support its contention that it was only discretionary as to when the entries should be liquidated. The court rejected that argument, stating that the discretionary nature of entries suspended beyond their fourth-year anniversaries does not apply to entries whose suspensions were lifted before that time. Nunn Bush, CIT slip op. 92-9, pp. 7-8.

In the present case, the entries were also suspended pursuant to an administrative review concerning countervailing duties. The suspensions were also lifted before the fourth-year anniversary date and Customs liquidated the subject entries after the fourth-year anniversaries had passed. Thus, there is no distinction between the situation in Nunn Bush and the present case. We therefore find that the holding in Nunn Bush applies here; the entries are deemed liquidated by operation of law on their fourth-year anniversaries.

HOLDING:

The entries are deemed liquidated as of their fourth-year anniversaries, respectively. Customs does not have the discretion to liquidate entries after their fourth-year anniversaries if suspensions on those entries were lifted prior to the fourth-year anniversaries. This protest shall be allowed.

Sincerely,

John Durant, Director

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