HQ 226207 - Protest 4909-93-100104; Protest 4909-93-100064; Failure to Give Notice of Suspension of Liquidation to Surety; 19 U.S.C. 1504; 19 U.S.C. 1514 - United States International Trade Commision Rulings

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 > 1997 HQ Rulings > HQ 114022 - HQ 226416 > HQ 226207

Previous Ruling Next Ruling
HQ 226207

December 23, 1996

LIQ-4-01/LIQ-11/BON-2-RR:IT:EC 226207 PH

CATEGORY: LIQUIDATION

Area Port Director
U.S. Customs Service
# 1 La Puntilla
San Juan, Puerto Rico 00901

RE: Protest 4909-93-100104; Protest 4909-93-100064; Failure to Give Notice of Suspension of Liquidation to Surety; 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 February 15, 1990, the importer of record entered certain merchandise (aluminum sulfates) from Venezuela. Countervailing duties in the amount of $1,806.90 were deposited (in the file there is a copy of a check dated May 3, 1990, in this amount from the importer of record to the Customs Service). A "Dumping Bond", executed on May 8, 1990, with the importer of record as principal and the protestant (Washington International Insurance Company, Surety No. 891) as surety is in the file. The limit of liability is $24,700. In the "file reference" block of the bond form, the last five digits (not including the check digit) of the protested entry are listed. The "Identification of transaction secured by this bond (e.g., entry no., seizure no., etc.)" block of the bond form is left blank. Also in the file is the import bond, executed February 14, 1990, for the entry. The "file reference" block of this bond is left blank, and the entire entry number is stated in the "Identification of transaction secured by this bond (e.g., entry no., seizure no., etc.)" block of the bond form.

The merchandise under consideration was the subject of an Antidumping Duty Order (case A-307-801) (Federal Register notice of December 15, 1989 (54 FR 51442), and a Countervailing Duty Order (case C-122-807) (Federal Register notice of December 19, 1989 (54 FR 51908)). In the Antidumping Duty Order Federal Register notice it was stated that a cash deposit, with a margin of 259.17%, was being required on all entries of the merchandise effective December 15, 1989. In the Countervailing Duty Order it was stated that a cash deposit of estimated countervailing duties (at an "all other" rate of 19.03%) was being required on all entries effective December 19, 1989. In a telex dated December 6, 1991, the suspension of liquidation on the basis of the Antidumping Duty Order for entries between December 1, 1989, and November 30, 1990, was lifted, effective "immediate[ly]". The suspension of liquidation on the basis of the Countervailing Duty Order for entries between January 1, 1990, and December 31, 1990, was lifted by message of April 28, 1992.

According to Customs records, liquidation of the entry was suspended, with the date of the notice of suspension being May 19, 1990. According to Customs records, notice of suspension was issued to the importer of record and the surety listed on the entry summary (International Cargo & Surety Ins., code no. 422). There is no evidence of notice of suspension to the protestant-surety (code no. 891).

The entry was liquidated on September 4, 1992, with liquidated duties in the amount of $26,415.09. Demand in the amount of $32,898.66 was made on the protestant-surety on April 21, 1993. The protest under consideration was filed on June 10, 1993 (according to documents in the file, the initially filed protest (numbered 4909-93-100064) was lost and replaced by protest 4909-93-100104). 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(c), "[i]f the liquidation of any entry is suspended, the Secretary shall, by regulation, require that notice of such suspension be provided to the importer of record concerned and to any authorized agent and surety of such importer of record."

The Customs Regulations issued under this statute are found in 19 CFR 159.12. Under section 159.12(c), "[i]f the liquidation of an entry is suspended as required by statute or court order ... the port director promptly shall notify the importer or the consignee and his agent and surety ...."

In this case, according to Customs records, no notice of suspension was issued to the surety-protestant. Such notice is required both by statute and regulations (see Old Republic Insurance Co. v. United States, 10 CIT 589, 645 F. Supp. 943 (1986). In the absence of notice to the surety-protestant, when the demand on the surety was timely protested, as in this case, we have no choice but to grant the protest (see Old Republic, supra; see also United States v. Cherry Hill Textiles, Inc., 888 F. Supp. 1202 (CIT 1995).

This does not mean that the entry should be reliquidated as to the importer of record or the surety to which notice of suspension was issued. According to Customs records, those parties were given proper notice of suspension (see, e.g., International Cargo & Surety Insurance Co. (Data Memory Corp.) v. United States, 15 CIT 541, 779 F. Supp. 174 (1991)). Furthermore, insofar as we are aware, neither the importer of record nor the surety to which notice of suspension was issued has timely protested the liquidation of the entry under consideration, so that, under 19 U.S.C. 1514(a) the liquidation is final as to those parties.

HOLDING:

The surety-protestant was given no notice of suspension of liquidation for the entry under consideration and the entry was liquidated more than 1 year after the date of entry. The protest is GRANTED, and the demand on the surety-protestant should be canceled.

The protest is GRANTED. 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. 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

Previous Ruling Next Ruling