HQ 226215 - Protest 1101-95-100182; Countervailing Duties; Deemed Liquidation; Interest; Surety Protest; 19 U.S.C. 1504; 19 U.S.C. 1514 - United States International Trade Commision Rulings

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HQ 226215

March 28, 1996

LIQ-4-02/LIQ-11/BON-2-RR:IT:EC 226215 PH

CATEGORY: LIQUIDATION

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

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