HQ 225783

January 16, 1996

LIQ-4-02-RR:IT:EC 225783 CC

CATEGORY: Entry

Port Director

U.S. Customs Service

P.O. Box 3130

Laredo, TX 78044-3130

RE: Application for further review of Protest No. 2304-94- 100165; 19
U.S.C. 1504(b), (d); 19 U.S.C. 1671b; countervailing

duties; suspension of liquidation

Dear Sir or Madam:

The above-referenced protest was forwarded to this office

for further review. We have considered the facts and issues

raised, and our decision follows.

FACTS:

Six entries are the subject of this protest; the dates of

entry follow: 1/08/92, 3/05/92, 3/12/92, 5/15/92, 6/17/92, and

6/17/92. The entered merchandise consisted of ceramic tiles from

Mexico.

The merchandise at issue was the subject of a countervailing

duty investigation (case C-201-003). In Preliminary Affirmative

Countervailing Duty Determination, published in the Federal

Register on February 23, 1982 (47 FR 7866), Customs was

instructed to suspend liquidation of the subject merchandise

entered on or after the date of publication. In a notice

published in the Federal Register on January 19, 1994 (59 FR

2823), the Department of Commerce revoked the countervailing duty

order with respect to specified companies, one of which was the

manufacturer of the merchandise the subject of this protest. The

Department of Commerce issued liquidation instructions to

Customs, on April 15, 1994, which covered the subject

merchandise, lifting the suspension of liquidation and

instructing Customs to liquidate without regard to countervailing

duties.

In notices of action dated May 5, 1994, Customs informed the

importer that the subject merchandise was classified pursuant to

the Harmonized Tariff Schedule of the United States (HTSUS) under

subheadings requiring duties of 20 percent ad valorem for 2 X 2\"

tiles and 19 percent ad valorem for 2 by 6\" tiles. As entered,

the subject merchandise was classifiable under subheadings that

entitled it to duty-free treatment under the General System of

Preferences (GSP).

All of the subject entries, except one, were liquidated on

May 20, 1994, with the remaining entry being liquidated on May

27, 1994. The protest was filed on August 19, 1994. The protest

was approved for further review on October 18, 1994.

The protestant protests the \"change from GSP-FREE to 19% ad

valorem due to the length of time it took to liquidate from the

date of entry.\"

ISSUE:

Whether the subject entries were improperly liquidated due

to the length of time from entry until liquidation took place?

LAW AND ANALYSIS:

Initially, we note that the protest was timely filed

pursuant to 19 U.S.C. 1514(c).

In addition, we note that 19 U.S.C. 1504 was amended by

section 641, title VI - Customs Modernization, Public Law 103-182, the
North American Free Trade Agreement Implementation Act

(107 Stat. 2057), enacted December 8, 1993. Title VI of Public

Law 103-182 took effect on the date of enactment of the Act

(section 692 of the Act). Since entry occurred prior to the date

of enactment, the amended law does not apply in this instance.

See HQ 225576 of November 15, 1994.

Liquidation of an entry constitutes the final computation by

Customs of all duties (including any antidumping or

countervailing) accruing on that entry. See generally,

Ambassador Division of Florsheim Shoes v. United States, 748 F.2d

1560, 1562 (Fed. Cir. 1984). The Customs Procedural Reform and

Simplification Act of 1978 provides in section 209(a), 19 U.S.C.

1504, that an entry is deemed liquidated as entered if Customs

has not liquidated the entry within one year from the date of

entry or withdrawal from warehouse. Extension of liquidation is

provided for under 19 U.S.C. 1504, and prior to its amendment,

stated the following:

\(b\) Extension.\--The Secretary may extend the period in

which to liquidate an entry by giving notice of such

extension to the importer of record 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 of record requests such

extension and shows good cause therefor.

In addition, 19 U.S.C. 1504, prior to its amendment, in

relevant part, stated the following:

\(d\) 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 of record, 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.

When the subject entries were filed, they were subject to a

countervailing duty determination and Customs was instructed to

suspend liquidation of such entries by the Department of

Commerce. See 47 FR 7866 and Customs telegram 01533, dated March

3, 1982, Suspension of Liquidation of Ceramic Tile From Mexico.

Customs computer records for the subject entries list an

extension code of \"4,\" indicating suspension of liquidation due

to an antidumping duty order or countervailing duty order.

Consequently, the subject entries were properly suspended by

statute pursuant to 19 U.S.C. 1671b(d)(1). On the entries\' first

year anniversary date and thereafter, liquidation continued to be

properly suspended under 19 U.S.C. 1504(b)(2) as required by

statute; there is nothing alleged by the protestant, nor is there

anything in the file that indicates that the relevant statutes

cited above were not followed in suspending liquidation. Once

the liquidation instructions concerning countervailing duties

were received from the Department of Commerce on April 15, 1994

and suspension of liquidation was lifted, Customs promptly

liquidated the entries within 45 days of the receipt of the

instructions. Consequently, we find that liquidation of the

subject entries was proper; the evidence does not show that the

subject entries were liquidated untimely. Also, liquidation

occurred within four years of the date of entry, and, therefore,

the subject entries cannot be deemed liquidated by operation of

law as entered.

In addition to the length of time in liquidating the

entries, another claim made by the protestant in the protest was

\"\[w\]hen the suspension was lifted, we were under the impression

that we owed no money to U.S. Customs.\" The applicable statute

provides that only an \"appropriate customs officer\" can

\"ascertain the classification \*\*\* applicable to \*\*\*
merchandise.\"

19 U.S.C. § 1500(b) (1988). B.S. Livingston & Co., Inc. v.

United States, 13 CIT 889, 894 (1989). In addition 19 U.S.C.

§ 1500 provides that the appropriate Customs officer liquidate

the entry and give notice of that liquidation. There is no

evidence or allegations in the file that these actions were not

taken, and, in fact, the file indicates that notice was given to

the importer prior to liquidation as to what the applicable duty

rate would be. In any event, the protestant has not challenged

or protested the tariff classification of the merchandise; only

the length of time in liquidating the entries was protested.

Consequently, no basis exists for allowing this protest.

HOLDING:

The subject entries were properly suspended and then

properly liquidated, and were not deemed liquidated by operation

of law. Therefore, the protest should be DENIED in full.

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 the decision

must be accomplished prior to mailing of the decision. Sixty

days from the date of the 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 the public

via the Diskette Subscription Service, Freedom of Information Act

and other public access channels.

Sincerely,

Director, International Trade

Compliance Division