HQ 225620

March 1, 1995

LIQ-4-01-CO:R:C:E 225620 CC

CATEGORY: Liquidation

District Director

U.S. Customs Service

P.O. Box 2450

San Francisco, CA 94126

RE: Protest and Application for Further Review No. 2809-93-101787;
deemed liquidation by operation of law; 19 U.S.C.

1504(d); Nunn Bush Shoe Co. v. United States

Dear Sir:

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:

Customs records show that the entry the subject of this

protest was made on November 30, 1988. The merchandise entered

was 3.5 inch microdisks and coated media from Japan.

The merchandise at issue was the subject of an antidumping

investigation (case A-588-802). In Notice of Preliminary

Determination, published in the Federal Register on September 29,

1988 (53 FR 38045), Customs was instructed to suspend liquidation

of the subject merchandise entered on or after the date of

publication. The Department of Commerce issued instructions to

Customs, in a telex dated September 10, 1992, that suspension of

liquidation for the subject merchandise was lifted. Instructions

for liquidating the subject merchandise were issued to the field

by the Customs Information Exchange by C.I.E. N-41/88, supplement

#10, dated September 23, 1992.

The subject entry was liquidated on May 14, 1993. Customs

made a Formal Demand on Surety on August 2, 1993 for payment of

the subject duties. This protest was timely filed within 90 days

of that action on October 28, 1993 in response to the demand.

ISSUE:

Whether the subject entry was deemed liquidated by operation

of law pursuant to 19 U.S.C. 1504(d)?

LAW AND ANALYSIS:

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. Customs is permitted to

extend the one year period, under 19 U.S.C. 1504(b), if

liquidation is suspended by statute or court order. The subject

entry was suspended pursuant to 19 U.S.C. 1673, pending the

results of an antidumping administrative review.

In addition, 19 U.S.C. 1504, in relevant part states 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.

The protestant claims that the subject entry was liquidated

by operation of law, as entered, because suspension of

liquidation was lifted with the publication of the final results

in the Federal Register on December 23, 1991, and liquidation

occurred over four years after the entry date. In addition, the

protestant protests, pursuant to the Tariff Act of 1930,

§ 737(a), antidumping duty increases when a \"cash deposit\" of

0.00% was made.

In Nunn Bush Shoe Co. v. United States, 784 F. Supp. 892

(CIT 1992), entries had been suspended pursuant to an

administrative review of countervailing duties on the

merchandise. The suspensions were lifted prior to the fourth-year
anniversaries of the entries, and Customs did not liquidate

those entries until after the fourth-year anniversaries had

passed. The Court held that the entries were deemed liquidated

by operation of law when they became four years old, stating

\"\[s\]ection 1504 unambiguously states that if an entry is not

liquidated within four years, then it will be deemed liquidated

by operation of law unless the period is extended as per 19

U.S.C. § 1504(b)(1)-(3).\"

The factual situation here is similar to that of Nunn Bush.

The entry was made on November 30, 1988 and liquidation was

suspended pursuant to administrative review of antidumping duties

on the merchandise. Suspension of liquidation is lifted when

Customs receives instructions from the Department of Commerce.

See, HQ 224778 of December 23, 1993. Here, the suspension of

liquidation occurred on September 10, 1992, which was prior to

the fourth-year anniversary of date of entry. Customs did not

liquidate the entry until May 14, 1993, over four years after the

entry date. Consequently, based on Nunn Bush, the entry was

deemed liquidated by operation of law on the fourth-year

anniversary of the entry date, which was November 30, 1992.

The protestant contested, in the alternative, antidumping

duty increases when a \"cash deposit\" of 0.00% was made. Since

the protestant prevailed on the issue of deemed liquidation, the

issue regarding assessment of dumping margins need not be

addressed because additional duties cannot be assessed on this

entry.

Finally, we note that 19 U.S.C. 1504(d) 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 and liquidation occurred

prior to the date of enactment, clearly the amended law does not

apply in this instance.

HOLDING:

The subject entry is deemed liquidated, pursuant to 19

U.S.C. 1504 and Nunn Bush, on the fourth-year anniversary of the

entry date. Consequently, the protest should be ALLOWED.

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,

John Durant, Director

Commercial Rulings Division