International Trading Co. v. United States

United States Court of Appeals for the Federal Circuit

04-1259

INTERNATIONAL TRADING CO.,

Plaintiff-Appellee,

UNITED STATES,

Defendant-Appellant.

R. Brian Burke, Rode & Qualey, of New York, New York, argued for plaintiff-
appellee. With him on the brief was William J. Maloney.

James A. Curley, Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of New York, New York, argued for defendant-appellant.
With him on the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen,
Director, of Washington, DC, and Barbara S. Williams, Attorney-in-Charge, International
Trade Field Office, of New York, New York. Of counsel on the brief were Edward N.
Maurer, Attorney, Office of Assistant Chief Counsel, United States Customs and Border
Protection, of New York, New York, and Dean A. Pinkert, Attorney, Office of Chief Counsel
for Import Administration, United States Department of Commerce, of Washington, DC.

Appealed from: United States Court of International Trade

Judge Evan J. Wallach
United States Court of Appeals for the Federal Circuit

04-1259

INTERNATIONAL TRADING CO.,

Plaintiff-Appellee,

UNITED STATES,

Defendant-Appellant.

__________________________

DECIDED: June 16, 2005
__________________________

Before LOURIE, RADER, and SCHALL, Circuit Judges.

SCHALL, Circuit Judge.

The United States appeals from a decision of the United States Court of

International Trade holding that the United States Customs Service (“Customs”)1 did not

liquidate a particular entry of goods within the statutorily allotted time, and that

therefore, pursuant to 19 U.S.C. § 1504(d),2 the entry was deemed liquidated at the rate

and amount of duty deposited by the importer. The government challenges the court’s

1
Effective March 1, 2003, the United States Customs Service was renamed
the United States Bureau of Customs and Border Protection. Homeland Security Act of
2002, Pub. L. 107-296, § 1502, 116 Stat. 2135, 2308-2309 (2002).
2
Statutory references are to the 2000 version of the United States Code.
ruling as to when the period for Customs to liquidate the entry began to run. It also

challenges the court’s interpretation of section 1504(d). Because we reject the

government’s arguments, we affirm the court’s decision.

BACKGROUND

In March of 1994, International Trading Company (“ITC”) imported shop towels

from a company in Bangladesh, Sonar Cotton Mills, Ltd. (“Sonar”). At the time of their

entry into the United States, the towels were subject to an antidumping duty order that

required a cash deposit of an antidumping duty computed at the rate of 2.72%. This

resulted in ITC depositing an antidumping duty in the amount of $1962.48 with respect

to the March 1994 entry. On April 14, 1995, the Department of Commerce

(“Commerce”) published a notice in the Federal Register that it would conduct a third

administrative review of the antidumping duty order, covering the period from March 1,

1994, to February 28, 1995. Initiation of Antidumping and Countervailing Duty

Administrative Reviews, 60 Fed. Reg. 19,017 (Apr. 14, 1995). Final liquidation of the

March 1994 entry was therefore suspended pursuant to 19 U.S.C. § 1673b(d).

The final results of the third administrative review were published on October 30,

1996. Shop Towels from Bangladesh; Final Results of Administrative Review, 61 Fed.

Reg. 55,957 (Oct. 30, 1996). The final results announced an antidumping duty rate of

27.31% for Sonar’s towels for the period March 1, 1994, through February 28, 1995.

On July 1, 1997, Commerce issued liquidation instructions to Customs by e-mail,

informing Customs that suspension of liquidation was lifted and ordering Customs to

liquidate entries subject to the administrative review.

04-1259 2
On September 26, 1997, almost one year after publication of the final results,

Customs liquidated ITC’s March 1994 shop towel entry at the rate determined in the

third administrative review. This resulted in $17,779.92 in additional antidumping duty

being owed with respect to the entry. ITC protested the liquidation, pointing to 19

U.S.C. § 1504(d). Section 1504(d) provides that “[e]xcept as provided in section

1675(a)(3) of this title,” when a suspension of liquidation is removed, Customs shall

liquidate the entry, unless liquidation is extended, within six months after receiving

notice of the removal from Commerce. The statute also provides that “[a]ny entry . . .

not liquidated by Customs within six months after receiving such notice shall be treated

as having been liquidated at the rate of duty, value, quantity and amount of duty

asserted at the time of entry by the importer of record.” Id. ITC argued that the

suspension of liquidation was removed in this case on October 30, 1996, when the

results of the third administrative review were published. Therefore, according to ITC,

pursuant to section 1504(d), the March 1994 entry was deemed liquidated six months

later on April 30, 1997, at the rate in effect (2.72%) and the amount of duty deposited

($1962.48) at the time of entry. After Customs denied the protest, ITC paid the

increased antidumping duty.

II.

On February 25, 2000, ITC filed suit in the Court of International Trade, seeking a

refund of the $17,779.92 in additional antidumping duty it had paid with respect to the

March 1994 entry of shop towels. Eventually moving for summary judgment, ITC

contended that the March 1994 entry should have been deemed liquidated at the

original deposit rate of 2.72% pursuant to 19 U.S.C. § 1504(d), because Customs had

04-1259 3
failed to liquidate the entry within the allotted six-month period. Cross-moving for

summary judgment, the government argued that publication of the final results of an

administrative review in the Federal Register does not constitute notice to Customs of

the removal of a suspension of liquidation within the meaning of section 1504(d). It also

argued that the proviso in the first sentence of section 1504(d), “[e]xcept as provided in

section 1675(a)(3) of this title,” means that if an entry is subject to section 1675(a)(3), it

is not subject to the deemed liquidation mandate of section 1504(d). For these reasons,

the government urged, the six-month time period for liquidating the March 1994 entry of

shop towels did not begin until July 1, 1997, when Commerce issued liquidation

instructions to Customs by e-mail.

Ruling on the motions for summary judgment, the Court of International Trade

held that, in accordance with 19 U.S.C. § 1504(d), the March 1994 entry was deemed

liquidated at the 2.72% deposit rate because Customs had failed to liquidate the entry

within the allotted six-month period. Int’l Trading Co. v. United States, 306 F. Supp. 2d

1265 (Ct. Int’l Trade 2004) (“Summary Judgment Order”). The court rejected the

government’s contention that publication of the final results of the third administrative

review in the Federal Register did not constitute notice to Customs of removal of the

suspension of liquidation within the meaning of 1504(d). In addressing the

government’s argument on this point, the court relied on our decision in International

Trading Co. v. United States, 281 F.3d 1268 (Fed. Cir. 2002) (“International Trading II”).

Summary Judgment Order, 306 F. Supp. 2d at 1266. In International Trading II, we

held that the April 1994 suspension of liquidation of shop towel entries from Bangladesh

during the period March 1, 1993, to February 28, 1994, was removed upon publication

04-1259 4
of the final results of the second administrative review in the Federal Register, and that

this publication constituted notice to Customs within the meaning of 19 U.S.C.

§ 1504(d).

The Court of International Trade noted that the case before it was similar in all

material respects to the action that was the subject of our decision in International

Trading II, except that the entry at issue in this case was made approximately one

month after the last entry covered by International Trading II. Summary Judgment

Order, 306 F. Supp. 2d at 1266. Unlike the entries at issue in International Trading II,

which were covered by the second administrative review, the entries at issue in this

case were covered by the third administrative review and, consequently, were subject to

the 1994 amendments under the Uruguay Round Agreements Act (“URAA”), Pub. L.

No. 103-465, 108 Stat. 4809 (1994). These amendments added the “[e]xcept as

provided in section 1675(a)(3) of this title” proviso to section 1504(d). Section

1675(a)(3) provides, in relevant part, that if Commerce orders the liquidation of entries

pursuant to an administrative review, the entries are to be liquidated “promptly and, to

the greatest extent practicable, within 90 days after the instructions to Commerce are

issued.” 19 U.S.C. § 1675(a)(3)(B). The court rejected the government’s contention

that the proviso meant that an entry subject to the administrative review provisions of

section 1675(a)(3) is exempt from the deemed liquidation mandate of section 1504(d).

The Court of International Trade determined that sections 1504(d) and 1675(a)(3) work

together to effectuate expedient Customs liquidation in the following manner:

Under § 1675(a)(3), an entry that is not liquidated by
Customs within 90 days after the Commerce liquidation
order confers the right upon the importer to demand an
explanation from the Secretary of the Treasury. If the entry

04-1259 5
has still not been liquidated (or extended) six months after
notice of removal of suspension (i.e. publication in the
Federal Register), then § 1504(d) (1994) directs that
liquidation be effected by operation of the law.

Summary Judgment Order, 306 F. Supp. 2d at 1275.

The court consequently granted ITC’s motion for summary judgment, ruling that

the period for deemed liquidation pursuant to section 1504(d) was not triggered when

Customs received e-mail liquidation instructions from Commerce on July 1, 1997, but

rather, when the results of the third administrative review were published in the Federal

deemed liquidated by operation of law six months later on April 30, 1997, at the rate

asserted and the amount of duty deposited at the time of entry. Summary Judgment

Order, 306 F. Supp. 2d at 1278-79.

DISCUSSION

We review the Court of International Trade’s grant of summary judgment for

correctness as a matter of law, deciding de novo (i) the proper interpretation of the

governing statute and regulations; and (ii) whether genuine issues of material fact exist.

Int’l Light Metals v. United States, 194 F.3d 1355, 1361 (Fed. Cir. 1999). In this case,

the material facts are not in dispute.

The government’s first argument on appeal is that the Court of International

Trade, relying on International Trading II, erred in holding that publication of the final

results of the third administrative review in the Federal Register provided notice to

Customs of the removal of the suspension of liquidation of the March 1994 shop towel

entry. The government argues that publication of the final results in the Federal

04-1259 6
Register did not constitute notice to Customs within the meaning of section 1504(d). In

making this argument, the government points to the notice provision of the Federal

Unless otherwise specifically provided by statute, filing of a
document, required or authorized to be published by section
1505 of this title, . . . is sufficient to give notice of the
contents of the document to a person subject to or affected
by it.

44 U.S.C. § 1507 (emphasis added). The government notes that a “person” is defined

in 44 U.S.C. § 1501 as “an individual, partnership, association or corporation.” The

government further notes that a federal agency is not included in the definition of a

“person” and, indeed, is separately defined in section 1501 as the President, an

executive department, an independent board, etc. From this, the government advances

the argument that “while publication of a document in the Federal Register can

constitute notice of the contents of the document to a ‘person,’ it is not notice to

Customs, which, by definition, is not a ‘person’ within the meaning of [section 1501].”

The government states that it advanced this argument in its briefing in

International Trading II (which did not mention the argument) and in an unsuccessful

petition for panel rehearing following the decision in International Trading II. The

government urges that the court erred in International Trading II when it held that

publication of the final results of an administrative review in the Federal Register

provides notice to Customs of the removal of a suspension of liquidation. The

government asks us to recommend to the full court that International Trading II be

overruled en banc. See Federal Circuit Rule 35(a)(2) (2004).

04-1259 7
We are not persuaded by the government’s argument. International Trading II’s

discussion of the issue of notice to Customs is thorough and well-reasoned. The court

stated:

For some of the same reasons that publication of the
final results [of an administrative review] removes the
suspension of liquidation, publication also provides notice of
the removal to Customs. Publication in the Federal Register
is a familiar manner of providing notice to parties in
antidumping proceedings. See, e.g., 19 U.S.C. § 1673d(d)
(1994) (requiring the International Trade Commission and
Commerce to notify interested parties of their determinations
by publication in the Federal Register); 19 U.S.C.
§ 1673e(c)(2)(A) (1994) (requiring Commerce to publish
notice in the Federal Register if it decides to allow an
importer to post a bond in lieu of the deposit of estimated
antidumping duties); 19 U.S.C. § 1673e(c)(3) (1988)
(requiring Commerce to publish notice in the Federal
Register of the results of its determinations and to assess
antidumping duties based on those published results); 19
U.S.C. § 1516a(a) (1994) (requiring parties who object to a
Commission decision to act within 30 days after the date of
publication of that decision in the Federal Register); 19
U.S.C. § 1516a(c)(1) (1994) (tying the date for liquidation of
entries affected by a relevant court decision to the date that
notice of that court decision is published in the Federal
Register). It therefore seems reasonable that Congress
intended for publication of the final results in the Federal
Register to have some legal effect.

Moreover, the date of publication provides an
unambiguous and public starting point for the six-month
liquidation period, and it does not give the government the
ability to postpone indefinitely the removal of suspension of
liquidation (and thus the date by which liquidation must be
completed) as would be the case if the six-month liquidation
period did not begin to run until Commerce sent a message
to Customs advising of the removal of suspension of
liquidation. Beyond that, treating the date of notification as
separate from the date of publication could lead to messy
factual disputes about when Customs actually received
notice of the removal of the suspension of liquidation.

04-1259 8
Int’l Trading II, 281 F.3d at 1275.

Thus, International Trading II based its ruling on the notice issue on a careful

analysis of statutes relating to antidumping proceedings and on sensible policy

considerations. Moreover, we see nothing in the language of 44 U.S.C. § 1507 that

compels the result the government urges. Section 1507 simply states that filing of a

document with the Federal Register Office “is sufficient to give notice of the contents to

a person subject to or affected by it.” That is not the same as stating that filing of a

document by a government agency is not sufficient notice to a sister government

agency. We therefore reject the government’s request that we ask the full court to act

en banc to overrule International Trading II.

II.

Under International Trading II, the suspension of liquidation of the March 1994

shop towel entry was removed on October 30, 1996, when Commerce published notice

of the results of the third administrative review in the Federal Register. Also under

International Trading II, publication of the results of the administrative review in the

Federal Register gave Customs notice of the removal of the suspension of liquidation.

Thus, were it not for the 1994 amendment adding the “[e]xcept as provided” clause to

19 U.S.C. § 1504(d), this case would be on “all fours” with International Trading II. In

short, there would be no question that, in accordance with the plain language of section

1504(d), the March 1994 shop towel entry was deemed liquidated at the 2.72% rate of

entry on April 30, 1997, six months after the removal of the suspension of its liquidation.

04-1259 9
What we must now address is whether the 1994 amendment changes that result. We

begin with the statutory language. Section 1504(d) provides as follows:

(d) Removal of suspension
Except as provided in section 1675(a)(3) of this title, when
a suspension required by statute or court order is removed,
the Customs Service shall liquidate the entry, unless
liquidation is extended under subsection (b) of this section, [3]
within 6 months after receiving notice of the removal from
the Department of Commerce. Any entry (other than an
entry with respect to which liquidation has been extended
under subsection (b) of this section) not liquidated by the
Customs Service within 6 months after receiving such notice
shall be treated as having been liquidated at the rate of duty,
value, quantity, and amount of duty asserted at the time of
entry by the importer of record.

19 U.S.C. § 1504(d). Section 1675(a)(3), which is referenced in the first sentence of

section 1504(d), provides in relevant part as follows:

(B) Liquidation of entries.
If the administering authority orders any liquidation of
entries pursuant to a review under paragraph (1),[4] such
liquidation shall be made promptly and, to the greatest
extent practicable, within 90 days after the instructions to
Customs are issued. In any case in which liquidation has
not occurred within that 90-day period, the Secretary of the
Treasury shall, upon the request of the affected party,
provide an explanation thereof.

19 U.S.C. § 1675(a)(3)(B).

Congress enacted section 1504 in 1978, in order to restrict the length of time

Customs could take to liquidate an entry. See § 209(a), Pub. L. No. 95-410, 92 Stat.

902. Congress sought to “increase certainty in the customs process for importers,

surety companies, and other third parties with a potential liability relating to a customs

3
The exception for an entry whose liquidation has been extended pursuant
to 19 U.S.C. § 1504(b) does not apply in this case.

04-1259 10
transaction.” International Trading II, 281 F.3d at 1272 (quoting Dal-Tile Corp. v. United

States, 829 F. Supp. 394, 399 (Ct. Int’l Trade 1993)). Congress originally imposed a

maximum four-year time period for liquidation (starting from the date of entry of the

merchandise) and a ninety-day time period in which Customs could liquidate entries

after the removal of a suspension of liquidation. Id. However, in 1993, Congress

amended section 1504(d) in order to address an anomaly in the 1978 version of the

statute, “which made deemed liquidation available if suspension of liquidation were

removed before the expiration of the maximum four-year period for liquidating entries,

but not if suspension of liquidation were removed after the expiration of the four-year

period.” Id. (citing Dal-Tile, 829 F. Supp. at 399-400).5 The amendment also increased

the time period in which Customs could liquidate entries after the removal of a

(Cont’d. . . .)
4
Paragraph (1) of 19 U.S.C. § 1675(a) provides, inter alia, for periodic
antidumping administrative reviews.
5
The 1978 version of the statute provided:

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 assignee, or agent, unless
liquidation continues to be suspended as required by statute
or court order. When such suspension of liquidation is
removed, the entry shall be liquidated within 90 days
therefrom.

19 U.S.C. § 1504(d) (1978) (emphasis added). The “applicable date” was the date of
entry of the merchandise. Id. § 1504(a). Court decisions interpreted the 90-day time
period in the last sentence as directory rather than mandatory. See Dal-Tile, 829 F.
Supp. at 397. Thus, if the suspension of liquidation was removed one day before the
fourth anniversary date, Customs would have only one day in which to liquidate the
entry and thereby avoid the application of the deemed liquidation rule. Id. However, if
the suspension of liquidation was not removed within the four-year period, Customs
would have an indefinite period of time in which to liquidate the merchandise. Id.

04-1259 11
suspension of liquidation from ninety days to six months. International Trading II, 281

F.3d at 1273. In International Trading II, we noted that one of the primary objectives of

the 1993 amendments was to remove the government’s unilateral ability to extend

indefinitely the time for liquidating entries. Id. at 1273.

Section 1504(d) was amended just one year later, after the United States signed

the Uruguay Round Agreements in 1994. Annexed to The Uruguay Round Agreements

was the Agreement on Implementation of Article VI of the General Agreement on Tariff

and Trade 1994 (the “Antidumping Agreement”). The Antidumping Agreement imposed

time limits for the completion of administrative reviews and for the liquidation of entries.

Article 9.31 of the Agreement provides:

When the amount of the anti-dumping duty is assessed on a
retrospective basis, the determination of the final liability for
payment of anti-dumping duties shall take place as soon as
possible, normally within 12 months, and in no case more
than 18 months, after the date on which a request for a final
assessment of the amount of the anti-dumping duty has
been made.20 Any refund shall be made promptly and
normally in not more than 90 days following the
determination of final liability made pursuant to this sub-
paragraph. In any case, where a refund is not made within
90 days, the authorities shall provide an explanation if so
requested.
________

20. It is understood that the observance of time-limits
mentioned in this subparagraph and in subparagraph
3.2 may not be possible where the product in question is
subject to judicial review proceedings.

Antidumping Agreement, art. 9.31, in Annex 1A to the Agreement Establishing the

World Trade Organization, Final Act Embodying the Results of the Uruguay Round of

Multilateral Trade Negotiations, Apr. 15, 1994, reprinted in World Trade Organization,

04-1259 12
The Legal Texts: The Results of The Uruguay Round of Multilateral Trade Negotiations

147 (1999).

In order for the United States to fulfill its obligations under the Antidumping

Agreement, Congress amended the tariff law by adding three new subsections to 19

U.S.C. § 1675(a)(3). URAA, 108 Stat. 4809. Subsection B of section 1675(a)(3), which

is at issue in this case, was added with respect to the liquidation of entries subject to an

administrative review. Congress also amended section 1504(d) by adding the phrase

“[e]xcept as provided in section 1675(a)(3) of this title,” to the first sentence of the

section. The proviso language in section 1504(d) is described in the implementing

legislation as a “conforming amendment.” See URAA, § 220(c), 108 Stat. at 4865.6

The government contends that the Court of International Trade’s interpretation of

section 1504(d) is erroneous because it gives no effect to the clause “[e]xcept as

provided in section 1675(a)(3) of this title.” The government argues that the plain

meaning of this clause is that an entry covered by the provisions of section

1675(a)(3)(B) is exempt from the deemed liquidation mandate of section 1504(d).

6
Section 220 of the URAA states in relevant part:

Conforming Amendment.—Section 504 (19 U.S.C. 1504) is
amended—

(1) in subsection (a), by inserting “except as provided in
section 751(a)(3),” before “an entry of merchandise not
liquidated”, and
(2) in subsection (d), by striking “When a suspension” and
inserting “Except as provided in section 751(a)(3), when a
suspension”.

URAA, § 220(c), 108 Stat. at 4865.

04-1259 13
According to the government, the clause requires section 1504(d)’s general command

to yield to the more specific language of section 1675(a)(3), which the government

asserts imposes only the requirement that, “to the greatest extent practicable,” Customs

liquidate an entry within ninety days after instructions issue following completion of an

administrative review. The government thus urges that an entry subject to the proviso

of the first sentence of section 1504(d) need not be liquidated within six months after

notice of the removal of the suspension of liquidation and that the deemed liquidation

requirement of the second sentence of the section simply does not apply.

Consequently, the government argues, the September 26, 1997 liquidation of the March

1994 shop towel entry was timely.7

The government also argues that the legislative history does not support the

Court of International Trade’s interpretation of section 1504(d). In so arguing, the

government relies upon the Statement of Administrative Action (“SAA”), which

accompanied the submission of the legislation implementing the URAA.8 H.R. Rep. No.

7
The government’s argument that the March 1994 entry was wholly
removed from the reach of section 1504(d) and was subject solely to section
1675(a)(3)(B), was advanced for the first time before the Court of International Trade.
Under these circumstances, the argument was not entitled to deference under Chevron
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44 (1984).
See Texport Oil Co. v. United States, 185 F.3d 1291, 1294 (Fed. Cir. 1999) (refusing to
extend Chevron deference where the agency had not advanced a position on the
issue). Apparently recognizing this, the government does not urge Chevron deference
on appeal.
8
19 U.S.C. § 3512(d) provides that the SAA “shall be regarded as an
authoritative expression by the United States concerning the interpretation and
application of the Uruguay Round Agreements and this Act in any judicial proceeding in
which a question arises concerning such interpretation or application.” We have
recognized the authority of the SAA. See Co-Steel Raritan, Inc. v. Int’l Trade Comm’n,
357 F.3d 1294, 1309 (Fed. Cir. 2004).

04-1259 14
103-316 (I) at 874 (1994), reprinted in 1994 U.S.C.C.A.N. 3773, 4040. The government

points to the following statement in the SAA:

The Administration is aware of prior complaints regarding
delays in the completion of administrative reviews and the
liquidation of entries, and intends to do its utmost to ensure
that Commerce and Customs are able to comply with the
deadlines established by the bill. At the same time,
however, it is not the Administration’s intent to sacrifice the
accuracy of results and fairness to the parties involved for
the sake of speed.

1994 U.S.C.C.A.N. at 4202. According to the government, this statement indicates

Congress’ intent to allow Commerce sufficient time to accurately translate the final

results of an administrative review into workable liquidation instructions. Thus, the

government argues, for entries covered by section 1675(a)(3)(B), Congress chose not

to impose a specific time period for the issuance of liquidation instructions.

ITC responds that the March 1994 entry was never subject to the provisions of

section 1675(a)(3)(B) because, by its terms, the section only comes into play after

Commerce has ordered the liquidation of entries subject to an administrative review.

Thus, according to ITC, by the time Commerce ordered liquidation of the March 1994

entry on July 1, 1997, the entry was already deemed liquidated pursuant to section

1504(d) on April 30, 1997. ITC further argues that even if the March 1994 entry were

subject to section 1675(a)(3)(B), the entry would not be removed from the discipline of

deemed liquidation under section 1504(d). According to ITC, Congress’ placement of

the “[e]xcept as provided” clause only in the first sentence of section 1504(d) indicates

Congress’ intent that deemed liquidation apply to “any entry,” including an entry covered

by the clause in the first sentence. ITC argues that the “except as provided” clause in

the first sentence of section 1504(d) is not rendered meaningless under this

04-1259 15
interpretation because the proviso serves to reference the requirement for prompt

liquidation, the urging that the liquidation be within 90 days of when instructions are

issued to Commerce, and the right to an explanation created by Congress in section

1675(a)(3)(B).

We are not persuaded that either the “[e]xcept as provided” clause in the first

sentence of section 1504(d) or the language of section 1675(a)(3)(B) changes the result

compelled by International Trading II. We thus agree with the Court of International

Trade that the phrase “[a]ny entry,” appearing in the second sentence of section

1504(d), refers to all entries, including entries suspended on account of an

administrative review (the class of entries to which the proviso in the first sentence of

section 1504(d) referring to section 1675(a)(3) applies). At the same time, we do not

agree with the government that the Court of International Trade’s reading of “any entry”

in the second sentence of section 1504(d) renders the proviso in the first sentence

meaningless. The reason is that the proviso works to reference the additional

requirement, created by Congress in section 1675(a)(3)(B), that if Commerce orders a

liquidation of entries pursuant to an administrative review, Customs should liquidate the

entries “promptly and, to the greatest extent practicable, within 90 days after the

instructions are issued.” It is true that in section 1675(a)(3)(B) Congress did not impose

a time limit on Customs with respect to a liquidation that has been ordered. However, it

was unnecessary for Congress to do so because entries subject to section

1675(a)(3)(B) still would be covered by the six-month deemed liquidation language of

section 1504(d). In this case, Customs failed to liquidate the March 1994 shop towel

entry until more than six months after Commerce’s publication of the final results of the

04-1259 16
third administrative review. Thus, by the time Customs liquidated the entry on

September 26, 1997, it was already deemed liquidated pursuant to section 1504(d).

Moreover, as noted, one of the primary objectives of the 1993 amendment to

section 1504(d) was to remove the government’s unilateral ability to extend the time for

liquidating entries indefinitely. The purpose, in turn, of the 1994 amendment to section

1504(d) was to conform the administrative review statute more closely to the

Antidumping Agreement’s time limits for the refund of duties. The implementing

legislation described the 1994 change to section 1504(d) as a conforming amendment.

Thus, the SAA explains that “Section 220(c) makes conforming changes to Section 504

of the Tariff Act of 1930, a provision which establishes general rules regarding the

liquidation of customs entries.” 1994 U.S.C.C.A.N. at 4202 (emphasis added). We

think it unlikely that Congress would have undone the primary objective of the 1993

amendment to section 1504(d) by removing time limits already present in the law,

without any indication in the legislative history that such a substantive change was

being made.

The SAA comment relied upon by the government, that “it is not the

Administration’s intent to sacrifice the accuracy of results and fairness to the parties

involved for the sake of speed,” fails to mention any change to existing law with respect

to the deemed liquidation requirement of section 1504(d). We think this comment is

most reasonably interpreted as indicating that liquidation should occur to the greatest

extent practicable within the ninety-day period set forth in new section 1675(a)(3)(B),

not as indicating that entries subject to administrative review are exempt from the

requirement of deemed liquidation.

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CONCLUSION

For the foregoing reasons, we agree with the Court of International Trade that the

period for deemed liquidation pursuant to section 1504(d) was not triggered when

Customs received liquidation instructions from Commerce on July 1, 1997, but rather,

was triggered when the final results of the third administrative review covering the entry

were published in the Federal Register on October 30, 1996. Accordingly, the subject

entry was deemed liquidated under section 1504(d) on April 30, 1997. The decision of

the Court of International Trade is therefore affirmed.

COSTS

Each party shall bear its own costs.

AFFIRMED

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