HQ 230649 - Protest/AFR No. 1801-04-100031; Irvin Steel, Inc.; 19 U.S.C. § 1504(d); deemed liquidation; Int’l Trading Co. v. United States, 306 F.Supp. 2d 1265 (Ct. Int’l Trade 2004), aff’d 412 F.3d 1303, 1311 (Fed. Cir. 2005). - United States International Trade Commision Rulings

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HQ 230649

January 19, 2006

LIQ-4-01; LIQ-11 RR:CR:DR 230649 LLB

Category: LIQUIDATION

Customs and Border Protection
Supervisory Customs Entry Officer
Attn: Ms. Cindy E. Chavez
1624 E. 7th Avenue
Tampa, FL 33605

RE: Protest/AFR No. 1801-04-100031; Irvin Steel, Inc.; 19 U.S.C. § 1504(d); deemed liquidation; Int’l Trading Co. v. United States, 306 F.Supp. 2d 1265 (Ct. Int’l Trade 2004), aff’d 412 F.3d 1303, 1311 (Fed. Cir. 2005).

Dear Ms. Chavez:

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

Initially, we note that the criteria for further review have been met. The protestant asserts in its application for further review (AFR), inter alia, that pursuant to 19 C.F.R. § 174.25(b), its protest involves questions of law or fact that have not been ruled on by the Commissioner of Customs or by the Customs courts. Insofar as at the time the protestant filed its protest and AFR, an appeal was pending in the Court of Appeals for the Federal Circuit on the applicability of the 1994 amendment to § 1504(d) for entries that were subject to administrative review on or after January 1, 1995, as explained below, the criteria for further review have been met.

FACTS

The subject protest involves three entries of steel wire rope made between March 20, 1998 through September 9, 1998. According to the entries, Irvin Steel, Inc. imported the steel wire rope and the packing invoices submitted therewith, show the steel wire rope was a product of Korea exported by Sungsan

Special Steel Processing, Inc. (Sungsan). At the time of entry, steel wire rope from Korea was subject to any antidumping order issued by the Department of Commerce (Commerce). See Antidumping Duty Order: Steel Wire Rope From Korea, 58 Fed. Reg. 16397 (March 26, 1993). The order stated that the merchandise was subject to a dumping margin of 1.51% and accordingly, directed Customs and Border Protection (CBP) to collect cash deposits on entries of steel wire rope filed September 30, 1992. Id. According to the entry documents submitted, the cash deposits on the entries were fully paid.

In 1999, the entries were suspended as Commerce initiated a review of steel wire rope from Korea for the relevant period of March 1, 1998 through February 28, 1999. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Requests for Revocations in part, 64 Fed. Reg. 23269 (April 30, 1999). On August 14, 2000, Commerce published final results of the administrative review for the subject period, indicating that the weighted-average margin for steel wire rope exported by Sungsan was 136.72%. See Notice of Final Results of Antidumping Duty Administrative Review: Steel Wire Rope From Republic of Korea, 65 Fed. Reg. 49540 (Aug. 14, 2000).

On October 19, 2000, Commerce issued to CBP instructions to liquidate entries of steel wire rope for Sungsan at a dumping margin of 136.72%. Accordingly, CBP liquidated the subject entries on March 7, 2004. A timely protest was filed thereto on August 5, 2004, in which the protestant argued that the entries liquidated by operation of law.

Pursuant to 19 U.S.C. § 1514(c)(3)(A), an importer has 90 days from notice of liquidation or reliquidation to file a protest. According to the Automated Commercial System, the entries were liquidated on May 7, 2004; therefore, the protestant had until August 5, 2004, to file its protest. Insofar as the protestant filed its protest on August 5, 2004, its protest was timely. The Miscellaneous Trade and Technical Corrections Act of 2004, recently amended section 1514(c) (3) and allows importers to file protests 180 days from notice of liquidation or reliquidation. See Pub. L. 108-429, 118 Stat. 2434 (Dec. 4, 2004). Since the subject merchandise was entered between March 20, 1998 and September 9, 1998, prior to the date of enactment of the foregoing Act, the amendment does not apply to this case. See Miscellaneous Trade and Technical Corrections Act of 2004 (“The amendments made by this subtitle shall apply to merchandise entered, or withdrawn from warehouse consumption, on or after the 15th day after the date of the enactment of this act.”).

ISSUE

Whether the entries liquidated by operation of law pursuant to 19 U.S.C. § 1504(d)

LAW and ANALYSIS

Pursuant to 19 U.S.C. § 1504(d):

Except as provided in section 1675(a)(3) of this title, when 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 (other than an entry with respect to which liquidation had been extended under subsection (b) of this section) 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.

The protestant argues that pursuant to Int’l Trading Co. v. United States, 306 F.Supp. 2d 1265 (Ct. Int’l Trade 2004), the entries liquidated by operation of law 6 months after Commerce published the results of its final administrative review in the Federal Register. At the time the protestant filed its protest and AFR, an appeal was pending from the CIT’s foregoing decision in Int’l Trading, in the Court of Appeals for the Federal Circuit on the issue of whether the first clause of the statute, which was part of the 1994 amendment to § 1504(d), exempted CBP from the 6-month deemed liquidation mandate of the statute for entries that were subject to administrative review on or after January 1, 1995. See Int’l Trading Co. v. United States, 412 F.3d 1303, 1311 (Fed. Cir. 2005). The Federal Circuit held that the phrase added by the 1994 amendment did not exempt entries subject to administrative review from the 6-month requirement of deemed liquidation and that the 6-month requirement was triggered by the publication of the final results in the Federal Register notice. Id. at 1313.

Here, the final results of the administrative review were published August 14, 2000, see 65 Fed. Reg. 49540; therefore, pursuant to Int’l Trading, the entries deemed liquidated 6-months thereafter on February 14, 2001, at the rate of duty, value, quantity, and amount of duty asserted at the time of entry by the importer of record.

HOLDING

The entries liquidated by operation of law pursuant to 19 U.S.C. § 1504(d) at the rate of duty, value, quantity, and amount of duty asserted at the time of entry by the importer of record. The protest should be ALLOWED.

In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together 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 make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director

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