HQ 222675: Application for further review of Protest No. 3701-6- 000050 under 19 U.S.C. 1504(d)

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 222675

                        November 7, 1990

LIQ-11-CO:R:C:E  222675 CB

CATEGORY:  Liquidation/Protest

Regional Commissioner
U.S. Customs Service
Suite 1501
55 East Monroe Street
Chicago, ILL  60603-5790

RE:  Application for further review of Protest No. 3701-6-
     000050 under 19 U.S.C. 1504(d)

Dear Sir:

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

FACTS:

     The subject entry was filed on July 16, 1980.  Liquidation
of the entry was suspended on July 31, 1980, pursuant to a
finding of dumping published in the Federal Register on June 9,
1972.  The record indicates that a notice of withheld
appraisement was sent out on August 4, 1980.  According to the
information you have provided, notices of suspension of
liquidation were mailed to the importer and surety on June 12,
1981; June 11, 1982; June 17, 1983; and April 27, 1984.  The
suspension order was lifted on June 27, 1985 and the entry was
liquidated on April 4, 1986.  According to protestant, CF 4333-As
were received from 1982 through 1984.  Protestant states that it
did not receive any notices in 1981 nor 1985.  Protestant
received no further notice from Customs until the notice of
liquidation dated April 4, 1986.

ISSUE:

     Whether the subject entry was deemed liquidated by operation
of law?

LAW AND ANALYSIS:

     Liquidation of an entry of merchandise constitutes the final
computation by Customs of all duties accruing on that entry.  As
provided in section 504, Tariff Act of 1930, as amended (19
U.S.C. 1504 (1988)), if Customs fails to liquidate an entry
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within one year from the date of entry or final withdrawal from
warehouse, that entry is deemed liquidated at the rate of duty,
value, quantity and amount of duties asserted at the time of
entry by the importer, his consignee, or agent.  Customs is
permitted to extend the one year period, provided for in 19
U.S.C. 1504(b),  under certain circumstances:  (1) if additional
information is needed to classify the goods, (2) liquidation is
suspended by statute or court order, or (3) the importer,
consignee, or his agent requests an extension.  Customs must
provide the importer with notice of the extension.  Any entry not
liquidated at the expiration of four years from the date of entry
or withdrawal from warehouse is deemed liquidated at the rate of
duty, value, quantity, and amount of duty asserted at the time of
entry by the importer, unless liquidation continues to be
suspended.

     In the instant case, the fact that suspension went beyond
the four year limitation does not result in a deemed liquidation.
The issue of whether there is statutory authority for a
suspension beyond the four year limitation was addressed in
American Permac, Inc. and Boewe Maschinenfabrik, GmbH v. United
States, 10 Ct. Int'l Trade 535, 642 F. Supp. 1187 (1986).  The
court held that as long as a suspension continues to be required
by statute, it may continue indefinitely.  In the instant case,
suspension of liquidation is required by 19 U.S.C. 1671b(d).
This section provides that if there is an affirmative preliminary
determination, the administering authority shall order suspension
of liquidation of all entries.  In the instant case, the order of
suspension was issued, and Customs implemented the same.  In
American Permac, the court also noted that statutory time limits
on administrative acts are directory, rather than mandatory, if
the statute does not specify adverse consequences if the time
limit is not met.

     It is the protestant's position that the entry was deemed
liquidated, pursuant to 19 U.S.C. 1504(d), when Customs failed to
liquidate the entries within 90 days of the lifting of the
suspension.  Customs is not required to liquidate an entry within
90 days once a suspension has been lifted.  In Canadian Fur
Trappers Corp., et al v. United States, 691 F. Supp. 364 (CIT
1988), the Court of International Trade held that the 90 day time
frame set forth in said 1504(d) is discretionary rather than
mandatory.  This holding was affirmed by the Circuit Court on
appeal.  See Canadian Fur Trappers Corp., and Meldisco, a
Division of Melville Corp., v. Unite States, Appeal No. 89-1060,
89-1061, and 89-1062, 23 Cus. Bul. & Dec. 39 (Fed.Cir. 1989).
The Circuit Court held that the lack of consequential language
in 1504(d) means that Congress intended this section to be only
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directory.  Therefore, following the Canadian Fur Trappers
holding, Customs failure to liquidate the subject entries within
90 days of the lifting of the suspension does not result in a
deemed liquidation.

     Alternatively, protestant argues that the entry was deemed
liquidated because it did not receive CF 4333-As for 1981 and
1985.  You have stated that notices of suspension of liquidation
were provided to the importer and surety from 1981 through 1985.
It is well established that CF 4333-As are merely courtesy
notices issued by Customs.  Protestant's failure to receive the
courtesy notices does not invalidate the suspension of
liquidation.  Annual notification is not required.  The
regulation only requires that the importer and surety be promptly
notified of the suspension.  See 19 CFR 159.12(c).  As the record
reflects, the Customs Service complied with this requirement.

HOLDING:

     There was a proper suspension of liquidation of the subject
entry, and the entry did not liquidate by operation of law.

     You should deny this protest.


                                Sincerely,




                                JOHN DURANT, Director
                                Commercial Rulings Division



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