LIQ-4-01-CO:R:C:E 224710 AJS

District Director
U.S. Customs Service
Seattle (Area/Port of Blaine)
9901 Pacific Highway
Seattle WA 98230
Attn: Protest Reviewer

RE: Protest for further review number 3004-92-100193; carbon steel plate from Japan; Kobe; Antidumping duty order A-588-067; 19 U.S.C. 1504(d); Canadian Fur Trappers Corp. v. U.S.; American Permac, Inc. v. U.S.; interest on antidumping duties; Timken Co., v. U.S.

Dear District Director:

This is our decision in protest for further review number 3004-92-100193, dated December 9, 1992, concerning carbon steel plate imported from Japan and manufactured by Kobe.

FACTS:

On May 30, 1978, in Treasury Decision (T.D.) 78-150, the Department of the Treasury (DOT) published a finding of dumping on carbon steel plate from Japan. 43 Fed. Reg. 22937 (1978). On January 2, 1980, the administration of anti- dumping laws was transferred from the DOT to the Department of Commerce (DOC) by virtue of the Trade Agreements Act of 1979. On September 30, 1981, the DOC published the final results of their administrative review of the dumping finding (i.e., A-588-067) with respect to Kobe for the period up to March 31, 1980. 46 Fed. Reg. 47804 (1981).

Prior to October 1, 1984, annual administrative reviews of antidumping orders were required by section 751 of the Tariff Act of 1930. Consequently, the DOC initiated an administrative review of their dumping findings for Kobe -2-

during the period of April 1980 through September 1981. The subject merchandise was entered in April of 1981. Section 611(a)(2)(A) of the Trade and Tariff Act of 1984 amended section 751 to provide for reviews on request rather than automatically on an annual basis. 50 Fed. Reg. 32556 (1985). On October 18, 1985, Kobe requested that the DOC complete the administrative review of its sales of carbon steel plate during the period April 1980 through September 1981. On April 17, 1986, the DOC published a notice revoking the antidumping finding on carbon steel plate from Japan for entries on or after October 1, 1984. 51 Fed. Reg. 13039 (1986). This notice did not cover unliquidated entries of steel plate from Japan which were exported prior to October 1, 1984. Furthermore, the notice stated that the DOC will address any entries not covered in a prior administrative review and exported prior to October 1, 1984, in a separate review, if one is requested.

On August 15, 1986, Kobe withdrew its request for the completion of an administrative review during the period April 1980 through September 1981.

In January of 1988, the DOC issued E-mail instructions through Customs Headquarters to field offices regarding A-588- 067. These instructions listed various manufacturers and exporters for whom the DOC had not received a request for an administrative review of the antidumping duty order. The DOC instructed Customs to assess antidumping duties on merchandise entered, or withdrawn from warehouse for consumption, during the periods and at the rate listed in the instructions. Kobe was not on this list. On August 19, 1992, the DOC issued further E-mail instructions through Customs Headquarters to field offices regarding A-588-067. Item number 7 of these instructions stated that "[e]ffective as of the date of issuance of this email message[,] you should no longer suspend liquidation of entries covered by this email[,] you should proceed with liquidation accordingly." These instructions required entries of carbon steel plate manufactured or exported by Kobe, and entered or withdrawn from warehouse for consumption from 4/1/80-9/30/81 to be assessed antidumping duties at 6.70 percent. As stated previously, the subject carbon steel plate was entered in April of 1981. Accord- ingly, your district liquidated the subject entries on September 11, 1992.

ISSUE:

Whether the subject entries were properly liquidated by Customs or deemed liquidated by operation of law pursuant to 19 U.S.C. 1504.

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Whether Customs may assess interest on the antidumping duties for the subject entries.

LAW AND ANALYSIS:

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). Pursuant to section 1504(b), Customs may extend this period if liquidation is suspended as required by statute or court order. The subject entries were suspended by statute pending the results of an administrative review. 19 U.S.C. 1504(d) states that any entry not liquidated at the expiration of four years from the applicable date specified in subsection (a) of this section (i.e., the date of entry in this case), shall be deemed liquidated at the rate of duty, value, quantity, and amount of duty asserted at the time of entry by the importer of record, unless liquidation continues to be suspended as required by statute or court order. In this case, the subject entries were suspended by statute beyond four years from the entry date.

19 U.S.C. 1504(d) also provides that when a statutory suspension of liquidation which extends beyond four years from the date of entry is removed, the entry shall generally be liquidated within 90 days therefrom. The Court of International Trade (CIT) has stated that when a suspension of liquidation is lifted after four years from the date of entry, Customs has a discretionary 90 days to liquidate the entries. Canadian Fur Trappers Corp. v. United States, 12 CIT 612 (1988), See also Nunn Bush Shoe Co. and Weyco Group Inc. v. United States, 784 F. Supp 892 (1992). In this instance, the suspension of liquidation was lifted on August 19, 1992, and the subject entries were liquidated on September 11, 1992. Therefore, the subject entries were liquidated properly by Customs pursuant to section 1504(d).

The protestant argues that the suspension of liquidation terminated soon after August 15, 1986, when Kobe terminated the administrative review. Only the DOC possesses authority to lift a suspension of liquidation which is required pending the results of an administrative review pursuant to 19 U.S.C. 1675. As long as a suspension of liquidation continues to be required by statute the suspension may continue indefinitely. American Permac, Inc. v. United States, 10 CIT 535, 539 (1986). As stated previously, the DOC did not lift the suspension of liquidation on the subject entries until August of 1992.

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Therefore, these entries could not have become deemed liquidated until sometime after this date. Customs liquidated the subject entries within 30 days from the lifting of suspension. Accordingly, the subject entries did not become deemed liquidated by operation of law.

The protestant also asserts that Customs improperly charged interest on the assessed antidumping duties. On January 28, 1993, Customs issued an e-mail message correcting liquidation instructions for carbon steel plate from Japan. These instructions stated that no interest is to be assessed on entries that were not subject to cash deposits (i.e., entered under bond). The CIT has held that the DOC was correct in not assessing interest on entries where Customs only required that a bond be posted rather than a cash deposit. Timken Co., v. United States, 777 F. Supp 20 (CIT 1990). It appears that the subject entries were secured by a bond. Thus, the antidumping duties on the subject entries may not been assessed with interest.

HOLDING:

The protest is denied and granted in part. It is denied in that the subject entries were not deemed liquidated by operation of law but instead by the actions of Customs on September 11, 1992. It is granted in that the antidumping duties may not be assessed with interest because they were not subject to cash deposits. A copy of this decision should be attached to the Form 19 and provided to the protestant.


Sincerely,


John Durant, Director