LIQ-11 CO:R:C:E 223922 TLS
District Director
U.S. Customs Service
4430 E. Adamo Suite C-100
Tampa, Florida 33605
RE: Protest #1801-91-000060 concerning deemed liquidation of
entries suspended beyond first-year anniversary and lifted before
fourth-year anniversary; 19 U.S.C. 1504(d); Nunn Bush and Weyco
Group, Inc. v. United States, CIT slip op. 92-9 (February 5,
1992).
Dear Sir:
The above-referenced protest has been forwarded to this
office for further review. We are returning the original entry
papers. In the future, original entry papers should not be sent
with the application for further review. See Customs Directive
3550-39 of January 16, 1991 (Protest Processing). We have
considered the points raised by the protestant and your office.
Our decision follows.
FACTS:
This case involves two entries that were entered on February
9 and 20, 1981. Liquidation was suspended on the entries
pursuant to a Department of Commerce administrative review of
countervailing duties on the subject merchandise. The review was
completed and the findings were published on January 6, 1984.
The Customs Director of Commercial Operations subsequently
instructed Customs field offices to liquidate the entries
pursuant to the findings. The subject entries were liquidated on
August 16 and 23, 1991, respectively.
The protestant has applied for further review of your
decision to deny its protest. You state your denial to be based
on the court decision in Canadian Fur Trappers Corp. v. United
States, 691 F. Supp. 96 (CIT 1988), aff'd, 884 F.2d 563 (Fed.
Cir. 1989). That decision held that the 90-day period in which
Customs has to liquidate an entry on which suspension had been
lifted after its fourth-year anniversary is discretionary and not
mandatory.
ISSUE:
Whether an entry is deemed liquidated when a suspension is
lifted from it after its first-year anniversary but prior to its
fourth-year anniversary.
LAW AND ANALYSIS:
The Canadian Fur Trappers decision addresses situations
where the suspension was lifted after the fourth-year anniversary
had passed and the 90-day period under 19 U.S.C. 1504(d) was to
take effect. In this case, the suspension was lifted prior to
the fourth-year anniversary; thus, the Canadian Fur Trappers
decision is not applicable here.
The Court of International Trade (CIT) has ruled on a case
similar to the case at hand. The court has recently held that
entries on which suspensions had been lifted prior to their
fourth-year anniversary shall be deemed liquidated by operation
of law on the fourth-year anniversary date. Nunn Bush Shoe
Company and Weyco Group, Inc. v. United States, CIT slip op. 92-
9 (February 5, 1992).
In Nunn Bush, the entries had been suspended pursuant to
administrative review of countervailing duties on the
merchandise. The suspensions were lifted prior to the fourth-
year anniversaries of the entries. Customs did not liquidate
those entries until after the fourth-year anniversaries had
passed. At trial, Customs had argued that it was not compelled
by statute to liquidate the entries before the fourth-year
anniversary. It cited to Canadian Fur Trappers to support its
contention that it was only discretionary as to when the entries
should be liquidated. The court rejected that argument, stating
that the discretionary nature of entries suspended beyond their
fourth-year anniversaries does not apply to entries whose
suspensions were lifted before that time. Nunn Bush, CIT slip
op. 92-9, pp. 7-8.
In the present case, the entries were also suspended
pursuant to an administrative review concerning countervailing
duties. The suspensions were also lifted before the fourth-year
anniversary date and Customs liquidated the subject entries after
the fourth-year anniversaries had passed. Thus, there is no
distinction between the situation in Nunn Bush and the present
case. We therefore find that the holding in Nunn Bush applies
here; the entries are deemed liquidated by operation of law on
their fourth-year anniversaries.
HOLDING:
The entries are deemed liquidated as of their fourth-year
anniversaries, respectively. Customs does not have the
discretion to liquidate entries after their fourth-year
anniversaries if suspensions on those entries were lifted prior
to the fourth-year anniversaries. This protest shall be allowed.
Sincerely,
John Durant, Director
Commercial Rulings Division