HQ 224759: Protest for Further Review Number 0901-92-101704; concerningthe liquidation of entries subject to antidumping duties (ADD);Deemed Liquidated under 19 U.S.C. 1504; American Permac, Inc. v.U.S., 10 CIT 535 (1986); Nunn Bush Shoe Co. and Weyco Group Inc.v. United States, 784 F. Supp. 892 (CIT 1992); Canadian FurTrappers Corp. v. United States, 12 CIT 612 (1988)

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 224759
                           July 6, 1994


LIQ-4-01:CO:R:C:E  224759  SR

CATEGORY:  Liquidation

District Director of Customs
111 W. Huron Street
Buffalo, NY  14202-2378

RE:  Protest for Further Review Number 0901-92-101704; concerning
the liquidation of entries subject to antidumping duties (ADD);
Deemed Liquidated under 19 U.S.C. 1504;  American Permac, Inc. v.
U.S., 10 CIT 535 (1986); Nunn Bush Shoe Co. and Weyco Group Inc.
v. United States, 784 F. Supp. 892 (CIT 1992); Canadian Fur
Trappers Corp. v. United States, 12 CIT 612 (1988)

Dear Sir:

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

FACTS:

     Coyne Textile Services is the importer of record for two
entries of cotton shop towels from China; one was entered on
August 10, 1988, and the other was entered September 28, 1988. 
Liquidation was suspended while the merchandise at issue was
under an administrative review by the Department of Commerce to
determine if antidumping duties should be assessed.  

     The Department of Commerce published the preliminary results
of the antidumping duty administrative review on the subject
merchandise for which antidumping duties were found to be due. 
(56 Federal Register 4020 (February 1, 1991)).  The Federal
Register Notice, at page 4042, stated that 

     The Department shall determine, and the Customs Service
     shall assess, antidumping duties on all appropriate entries. 
     Individual differences between United States price and
     foreign market value may vary from the percentage stated
     above.  The Department will issue appraisement instructions
     directly to the Customs Service.




                               -2-


     Notice was sent from the Department of Commerce on May 26,
1992 (CIE N-129/82) directing Customs to liquidate the entries at
a rate of 55.27 percent of the U.S. price.  The entries were
liquidated on July 24, 1992.             

     The protestant claims that the suspension is automatically
lifted as of the date of the Federal Register Notice.  Because
the merchandise was liquidated almost one-and-a-half years after
the date of the Federal Register Notice, and Customs did not
issue an extension notice, the protestant states that the
merchandise should be deemed liquidated by operation of law.

ISSUE:

     Whether the subject entries were deemed liquidated by
operation of law.

LAW AND ANALYSIS:

     Liquidation has been defined as "the final computation by
the Customs Service of all duties (including any antidumping or
countervailing duties) accruing on that entry."  American Permac,
Inc. v. United States, 10 CIT 535, 537 ((1986).  Customs is bound
by certain time limits during which liquidation must occur under
19 U.S.C. 1504.  

     Generally, an entry of merchandise not liquidated within one
year "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."  19 U.S.C. 1504(a).   Liquidation may be
extended under 19 U.S.C. 1504(b) for the following reasons:

          Extension of liquidation is provided for under 19
U.S.C. 1504 as follows:

     (b) Extension.--The Secretary may extend the period in which
     to liquidate an entry by giving notice of such extension to
     the importer, his consignee, or agent in such form and 
     manner as the Secretary shall prescribe in regulations, if-
          (1) information needed for the proper appraisement or
          classification of the merchandise is not available to
          the appropriate customs officer;
          (2) liquidation is suspended as required by statute or
          court order; or
          (3) the importer, consignee, or his agent requests such
          extension and shows good cause therefor.

                            *   *   *





                               -3-


     (d)  Limitation.--Any entry of merchandise not liquidated at
     the expiration of four years from the applicable date
     specified in subsection (a) of this section shall be deemed
     liquidated at the rate of duty, value, quantity, and amount
     of duty asserted at the time of entry by the importer, his 
     consignee, or agent, unless liquidation continues to be
     suspended as required by statute or court order. *   *   *

     In this case liquidation was properly suspended under 19
U.S.C. 1673b(d)(1).  The protestant states that the suspension
was lifted on February 1, 1991, the date of the Federal Register
Notice; and therefore, Customs should have sent an extension
notice since it did not liquidate for more than a year.  However,
it is Customs position that the suspension was not lifted until
Customs was instructed by the Department of Commerce on May 26,
1992.  As stated in the Federal Register (see quote in the facts
above) the Department of Commerce may find individual differences
between the U.S. price and the foreign market value which may
vary from the percentage provided in the Federal Register Notice. 
Until the proper percentage rate assessment is provided, Customs
is unable to liquidate the merchandise.  

     Under 19 U.S.C. 1504(a) and (d) merchandise is deemed
liquidated by operation of law four years from the date of entry
unless liquidation continues to be suspended by statute or court
order.  In this case the suspension was lifted by the
notification from Commerce to Customs on May 26, 1992; the third
year of the suspension.  The merchandise was liquidated less than
60 days after the suspension was lifted.  Liquidation occurred
less than one month before the four year anniversary of the date
of entry for the first entry and approximately 2 months before
the anniversary date of the second entry.  The entries would not
be deemed liquidated under 19 U.S.C. 1504(d).   

     A similar fact pattern was addressed by the Court of
International Trade (CIT) in Nunn Bush Shoe Co. and Weyco Group
Inc. v. United States (Nunn Bush), Slip Op. 92-9, Customs
Bulletin and Decisions, vol. 26, no. 7, p. 19 (February 12,
1992), 784 F. Supp. 892.  Nunn Bush dealt with entries which had
been suspended pending the results of a countervailing duty
investigation and later pursuant to a court injunction.  The
injunctions were dissolved before the entries were four years
old, but in this case Customs did not liquidate certain of these
entries until after four years from the date of entry.

     In Nunn Bush, the CIT discussed their decision in Canadian
Fur Trappers Corp. v. United States (Fur Trappers), 12 CIT 612
(1988).  Fur Trappers also involved the application of 19 U.S.C.
1504(d).  In that case the suspension of the entries was lifted 



                               -4-


after the four years had expired.  The CIT stated that when a
suspension is lifted after the four years have passed, Customs 
has a discretionary period in which to liquidate the entries. 
Nunn Bush, p. 21-22.  The Nunn Bush court held that entries not
subject to a statutory or court ordered suspension of liquidation
when they turned four years old were deemed liquidated by
operation of law.  Here, however, the two entries were liquidated
before they turned four years old.  Further, the amendments made
in section 641 of the North American Free Trade Agreement
Implementation Act (Act of December 8, 1993, 107 Stat 2057, Pub.
L. 103-182) do not apply since the entries here were made before
the effective date of the act.

HOLDING:

     The suspension was lifted by the notification from Commerce
to Customs on May 26, 1992; the third year of the suspension. 
The entries were liquidated before the four-year anniversary of
the date of entry and therefore would not be deemed liquidated
under 19 U.S.C. 1504(d).  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 to the
protestant no later than 60 days from the date of this letter. 
Any reliquidation of the entry in accordance with this decision
must be accomplished prior to the mailing of the decision.  Sixty
days from the date of this 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 to
the public via the Diskette Subscription Service, Lexis, Freedom
of Information Act and other public access channels.


                                   Sincerely,




                                   John Durant
                                   Director
                                   Commercial Rulings Division