HQ 222615: Deemed liquidation under 19 U.S.C. 1504(d) of entriesinvolving anti-dumping duties

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 222615

                          July 29, 1991


LIQ-1 CO:R:C:E 222615

CATEGORY: Entry; Liquidation

District Director
U.S. Customs Service
One Virginia Avenue
Wilmington, North Carolina  28401

RE: Deemed liquidation under 19 U.S.C. 1504(d) of entries
involving anti-dumping duties


Dear Sir:

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

FACTS:

     A series of entries were made between August 18, 1980 and
June 24, 1981, at the Wilmington, North Carolina port.  The
merchandise involved in each entry was viscose staple fibers
which are imported from France.  On March 21, 1979, the
Department of the Treasury published a ruling (T.D. 79-88) to
protect against the dumping of viscose staple fibers into the
U.S. commerce.  Pursuant to the decision, the liquidation of the
subject entries was suspended.  The suspensions remained intact
until May 24, 1983 and June 13, 1984, when the International
Trade Administration (ITA) of the Department of Commerce
published the findings of two administrative reviews (48 Fed.
Reg. 44804 and 49 Fed. Reg. 24427, respectively) which lifted the
suspensions.  The subject entries were directly affected.  They
were liquidated on July 21, 1989.

     On August 4, 1989, the importer protested the liquidation of
all five entries arguing that they liquidated by operation of
law, pursuant to the first sentence of 19 U.S.C. 1504(d), on the
fourth anniversary of their entry date.  According to the
protestant, since Customs never extended the liquidation of any
entry subsequent to Commerce's instruction to liquidate, the
first sentence of 19 U.S.C. 1504(d) provides that the entries be
deemed liquidated.


ISSUE:

     Whether an entry suspended beyond its first year anniversary
liquidates by operation of law on its four-year anniversary date
pursuant to 19 U.S.C. 1504(d) if the suspension is lifted prior
to that date.

LAW AND ANALYSIS:

     19 U.S.C. 1504 provides as follows:

     (a) Liquidation.-Except as provided in subsection (b)
     of this section, an entry of merchandise not liquidated
     within one year from:

          (1) the date of entry of such merchandise;   
          (2) the date of the final withdrawal from
          warehouse of such merchandise covered by
          warehouse entry; or
          (3) the date of withdrawal from warehouse of
          such merchandise for consumption where,
          pursuant to regulations issued under section
          1505(a) of this title, duties may be
          deposited after the filing of an entry or
          withdrawal from warehouse;

     shall be 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. 
     Notwithstanding section 1500(e) of this title, notice
     of liquidation need not be given of an entry deemed
     liquidated.

     . . .

     (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.  When such a suspension of
     liquidation is removed, the entry shall be liquidated
     within 90 days therefrom.

     In the present case, all five entries were suspended from
liquidation pursuant to the Antidumping Duty Order covering
viscose staple fibers from France.  This suspension was in effect
for all entries at the time of their first year anniversary. 
There is no dispute that the suspensions in this case were valid
and no contention, therefore, that these entries liquidated by
operation of law on their first year anniversary.  See, 19 U.S.C.
1504(a).

     The protestant claims that since the suspensions were lifted
by the Department of Commerce on May 24, 1983, and June 13, 1984,
prior to the four-year anniversary date, the entries liquidated
by operation of law pursuant to the first sentence of 19 U.S.C.
1504(d) on their fourth anniversary, i.e., August 18, 1984,
through June 24, 1985.  According to protestant, 19 U.S.C.
1504(d) provides for a deemed liquidation "unless liquidation
continues to be suspended as required by statute or court order." 
Since, in protestant's view, no suspension was required by
statute or court order on the fourth year anniversary, the
entries liquidated by operation of law.  The protestant believes
that this fact distinguishes this case from Canadian Fur Trappers
v. United States, 691 F. Supp. 364 (CIT), reh'g and motion to
amend judgment den'd (unpublished orders dated August 25, 1988),
aff'd, 884 F.2d 563 (Fed. Cir. 1989).  The importer further
believes that its analysis is supported by the holding in Pagoda
Trading Corp. v. United States, 804 F.2d 665 (Fed. Cir. 1986). 
We disagree.

     Contrary to protestant's belief, the issue raised here was
raised and disposed of in Canadian Fur Trappers v. United States,
supra.  In that case, as here, several entries were subject to
suspensions which were lifted prior to the entries' fourth year
anniversary.  Indeed, the plaintiffs in Canadian Fur Trappers
raised protestant's precise contention concerning 19 U.S.C.
1504(d) in their motions to amend the initial decision of the
Court of International Trade.  The motions were rejected by the
court in unpublished orders on August 25, 1988.  While the
published opinions do not clearly indicate that protestant's main
contention was involved, it was raised and rejected.

     On appeal, the plaintiffs in Canadian Fur Trappers again
raised the argument that the first sentence of 19 U.S.C. 1504(d)
mandated a deemed liquidation for any entry for which a
suspension lifted prior to the expiration of the fourth year
anniversary.  Again, protestant's argument was rejected.  While
the majority appellate decision is silent on the issue, the
concurring opinion does not indicate that the "statute [referring
to 19 U.S.C. 1504(d)]. . . does not state what happens if the
suspension is terminated more than one, but less than four, years
after entry. . ."  884 F.2d at 568.  Accordingly, it is our
opinion that Canadian Fur Trappers is applicable to these facts
and precludes protestant's interpretation of 19 U.S.C. 1504(d).

     Similarly, we do not believe that the decision in Pagoda
Trading Corp. v. United States, 804 F.2d 665, is applicable to
these facts.  That case is grounded on 19 U.S.C. 1504(a), which 
provides for liquidations by operation of law on an entry's first
year anniversary except as provided in "subsection (b)" of 19
U.S.C. 1504.  Subsection (b) provides, in part, for suspensions
of liquidation as required by statute or court order.  19 U.S.C.
1504(b)(2).  Since no suspension was in effect on the one year
anniversary, the court concluded in Pagoda Trading that
subsection (b) was inapplicable and the entries liquidated by
operation of law in accordance with 19 U.S.C. 1504(a).  Id. at
669.  Here, the entries were subject to a suspension order on
their first year anniversary.  Accordingly, 19 U.S.C. 1504(b) is
applicable and the entries are not subject to a liquidation by
operation of law pursuant to 19 U.S.C. 1504(a).  The only
arguably applicable provision mandating a liquidation by
operation of law after an entry has been suspended beyond its
first year anniversary is 19 U.S.C. 1504(d).  As stated above,
however, Canadian Fur Trappers rejected this contention.

HOLDING:

     The subject entries were not deemed liquidated by operation
of law four years after the dates of entry.  You are instructed
to deny this protest.

                              Sincerely,




                              John Durant, Director