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HQ 227653

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October 31, 1997

LIQ-4-01/LIQ-11 RR:IT:EC 227653 CB

CATEGORY: LIQUIDATION

Port Director
U.S. Customs Service
1624 7th Avenue
Tampa, FL 33605-3706
Attn: Bruce W. Ingalls
Chief, Trade Compliance

RE: Protest and Application for Further Review No. 1801-95-100014; Antidumping Duties; Deemed Liquidation; Time for Liquidation after Removal of Suspension of Liquidation;
19 U.S.C. ?1504(d); 19 U.S.C. 1514

Dear Sir/Madam:

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

FACTS:

According to the file, the importer entered certain merchandise (circular welded carbon steel pipes and tubes) from Taiwan. The entry date is May 5, 1984. The merchandise was subject to an antidumping order (49 Fed. Reg. 19369, May 7, 1984). Protestant posted a bond to secure the estimated antidumping duties due on the entry. Liquidation was suspended and a notice was issued on June 29, 1984.

The entry was liquidated on November 25, 1994 with an increase of $4,286.14 representing the antidumping duties owing on the entry. Protestant contends that the subject entry deemed liquidated on May 17, 1988 (sic), the fourth year anniversary. Protestant contends that because no annual administrative review was conducted for the time period covering the subject entry, and no appeal was taken to the Court of International Trade with respect to the subject entry, the entry deemed liquidated as entered.

ISSUE:

May the subject protest be granted?

LAW AND ANALYSIS:

Initially, we note that the protest was timely filed (i.e., within 90 days from the date of liquidation). See, 19 U.S.C. U.S.C. 1514(a)(5).

Under 19 U.S.C. ?1504, as amended (see section 641, Pub. L. No. 103-182, 107 Stat. 2204), an entry not liquidated within one year from the date of entry 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."

In the instant case, the protestant asserts that the subject entry liquidated by operation of law no later than May 17, 1988, because no annual administrative review was conducted for the time period covering the subject entry. The date of entry was in May of 1984, liquidation of the entry was properly suspended within one year of the date of entry (date of notice of suspension: June 29, 1984)(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 224793)), suspension of liquidation was not lifted until more than 4 years after entry (June 10, 1994), and liquidation was promptly thereafter (November 25, 1994). Since liquidation was after the effective date (December 8, 1993) of the amendments to 19 U.S.C. statute controls in regard to the issue of the time for liquidation after the suspension of liquidation was lifted. The protested entry was liquidated within 6 months after Customs received notice of the removal of the suspension of liquidation, as required by the amended section 1504(d). Thus, the subject protest must be denied.

Additionally, as previously stated, protestant asserts that the entry deemed liquidated because there was no annual administrative review. However, protestant does not provide any legal basis or case law which supports this conclusion. The fact that no annual administrative review was conducted for the time period covering the subject entry has no bearing on when liquidation is effected. Suspension of liquidation remains in place until such time as Commerce
issues instructions to Customs advising that it can proceed with liquidation. In the instant case, such instructions were not issued until June 10, 1994.

Generally, we have held that the role of Customs in the antidumping process is "... simply to follow Commerce's instructions in collecting deposits of estimated duties and in assessing antidumping duties, together with interest, at the time of liquidation" (see HQ 225382, July 3, 1995; see also, Mitsubishi Electronic America Inc. v. United States, 44 F.3d 973 (Fed. Cir. 1994)). However, if Customs fails to follow the instructions of the Department of Commerce, that failure may be subject to protest under 19 U.S.C. ?1514. In the instant case, there is no allegation that Customs failed to follow Commerce's liquidation instructions but, rather, protestant seems to be challenging Commerce's decision to suspend liquidation for an extended period of time. This is not a protestable issue under 19 U.S.C. ?1514.

HOLDING:

The subject protest should be 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,

John A. Durant, Director
Commercial Rulings Division

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