691 F.Supp. 364 (CIT. 1988), 86-07-00977, Canadian Fur Trappers Corp. v. United States

Docket Nº:Court Nos. 86-07-00977, 86-05-00641.
Citation:691 F.Supp. 364
Party Name:CANADIAN FUR TRAPPERS CORP., et al., Plaintiffs, v. UNITED STATES, Defendant.
Case Date:July 08, 1988
Court:Court of International Trade

Page 364

691 F.Supp. 364 (CIT. 1988)

CANADIAN FUR TRAPPERS CORP., et al., Plaintiffs,

v.

UNITED STATES, Defendant.

Court Nos. 86-07-00977, 86-05-00641.

United States Court of International Trade.

July 8, 1988

Page 365

Siegel, Mandell & Davidson, Brian S. Goldstein and Judith M. Barzilay, New York City, for plaintiff-Canadian Fur Trappers Corp.

Mudge Rose Guthrie Alexander & Ferdon, Donald B. Cameron, Jr., Teresa M. Polino and David B. Meltzer, Washington, D.C., for plaintiff-Meldisco, A Div. of Melville Corp.

John R. Bolton, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civ. Dept., U.S. Dept. of Justice, Washington, D.C. (Velta A. Melnbrencis); New York City, of counsel: Paul C. Aiken, II, Attorney-Advisor, Office of the Deputy Chief Counsel for Import Admin., U.S. Dept. of Commerce, Washington, D.C., Edward N. Maurer, Atty., Office of Asst. Chief Counsel for International Trade Litigation, U.S. Customs Service, U.S. Dept. of Treasury, New York City, for defendant.

Collier, Shannon, Rill & Scott, Lauren R. Howard and Michael R. Kershow, Washington, D.C., for amicus curiae Footwear Industries of America, Inc.

MEMORANDUM OPINION AND ORDER

TSOUCALAS, Judge:

This matter is before the Court to determine whether certain of plaintiffs' entries, subject to a countervailing duty order, were deemed liquidated by operation of law pursuant to 19 U.S.C. § 1504(d), and if not deemed liquidated, whether interest was properly assessed when Customs liquidated these entries.

BACKGROUND

Plaintiffs' goods are subject to an outstanding countervailing duty order, T.D. 74-235. Therefore, plaintiffs deposited estimated countervailing duties upon the entry of its goods. Pursuant to § 751 of the Trade Agreements Act of 1979, Pub.L. 96-39, § 751, 93 Stat. 144, 175 (1979), 19 U.S.C. § 1675 (1982 and Supp. III 1985), Commerce undertook annual reviews of this order to ascertain the amount of countervailing duties to be assessed. Plaintiffs' entries during 1980-1982, the subject of this action, were included within the first and second annual reviews, respectively. Thus, liquidation of these entries were suspended pending a final determination in each annual review. In the final results of these reviews Commerce found that net subsidies existed, 48 Fed.Reg. 40,536-38 (Sept. 8, 1983); 49 Fed.Reg. 30,003-04 (July 25, 1984), which were greater than the rate of estimated countervailing duty paid by plaintiffs at the time of entry. Thus, upon liquidation of plaintiffs' entries, additional countervailing duties would be due.

Before the entries were liquidated, however, two actions were commenced in this court (challenging issues unrelated to this case) wherein liquidation of plaintiffs' merchandise

Page 366

was enjoined pursuant to court order pending resolution of each action. Volume Footwear Retailers of America v. United States, Court No. 83-10-01500; Volume Footwear Retailers of America v. United States, Court No. 84-08-01083. After these actions were subsequently consolidated, they were thereafter dismissed on May 15, 1985, pursuant to a stipulation of dismissal consented to by all parties. Volume Footwear Retailers of America v. United States, Consolidated Court No. 83-10-01500. Five months later, the government moved to dissolve the injunctions. Originally, that motion was granted, nonetheless on January 3, 1986, after rehearing, the court vacated that order concluding that the preliminary injunctions actually dissolved on May 15, 1985 when the case was dismissed. See Volume Footwear Retailers of America v. United States, 10 CIT ----, Slip Op. 86-4 (January 9, 1986).

Thereafter, pursuant to instructions by Commerce, the Customs Service liquidated certain of the entries in issue on February 28, 1986, and others on March 31, 1986, which included the assessment of countervailing duties and interest. Plaintiffs commenced this action to challenge the validity of these liquidations. Presently before the Court are plaintiffs' and defendant's cross-motions for summary judgment on the issue of whether Customs' failure to liquidate these entries within 90 days of when the suspension of liquidation terminated on May 15, 1985, results in liquidation by operation of law under 19 U.S.C. § 1504, and whether interest was properly assessed under 19 U.S.C. § 1677g. If the merchandise was deemed liquidated, the additional countervailing duties determined to be due from the annual reviews of the countervailing duty order would not be assessed.

DISCUSSION

In certain circumstances an entry will be deemed liquidated if Customs fails to liquidate within the prescribed time period. The time limits on liquidation are set forth in 19 U.S.C. § 1504 (1982 and Supp. III 1985), which provides in relevant part:

(a) Liquidation.--Except as provided in subsection (b) of this section, an entry of merchandise not liquidated within one year from:

(1) the date of entry of such merchandise;

....

shall be deemed liquidated at the rate of duty value, quantity, and amount of duties asserted at the time of entry....

(b) Extension.--The Secretary may extend the period in which to liquidate an entry ... 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 ... requests such extension and shows good cause therefor.

....

(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 ... 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. (Emphasis added).

The focus of this analysis is on § 1504(d), which generally, sets a four year limit on extensions of liquidation. Merchandise not liquidated by Customs within that time will be deemed liquidated at the amount of duty asserted at the time of entry in accordance with § 1504(a). The exception to this rule is when suspension continues to be required by statute or court order. Whereas administrative extensions in § 1504(b)(1) or (3) are not excepted from the four year limitation in subsection (d), a suspension of liquidation under § 1504(b)(2) may continue indefinitely if the court order or statute requires. American Permac, Inc. v. United States, 10 CIT ----, ----, 642 F.Supp. 1187, 1191 (1986) .

Page 367

This action centers on what should occur once that suspension ceases. The Court must resolve whether the last sentence in § 1504(d) is mandatory, thereby imposing the consequence of deemed liquidation when Customs failed to liquidate the entry within 90 days of when the suspension was terminated on May 15, 1985; or whether the provision is directory only, so the failure to liquidate within 90 days does not divest Customs of its ability to take such action beyond the deadline.

Plaintiffs claim that the language used by Congress, to wit: "shall be liquidated within 90 days therefrom" clearly mandates that Customs act within that time frame. It has been recognized that use of the word "shall" normally connotes a command. Escoe v. Zerbst, 295 U.S. 490, 493, 55 S.Ct. 818, 819, 79 L.Ed. 1566 (1935). However, "[s]tatutes that, for guidance of a governmental official's discharge of duties, propose 'to secure order, system, and dispatch in proceedings' are usually construed as directory, whether or not worded in the imperative, ... especially when the alternative is harshness or absurdity." Ralpho v. Bell, 569 F.2d 607, 627 (D.C.Cir.1977) (footnote omitted).

"It is settled that '[a] statutory time period is not mandatory unless it both expressly requires an agency or public official to act within a particular time period and specifies a consequence for failure to comply with the provisions' (emphasis added)." Alberta Gas Chemicals, Inc. v. United States, 1 CIT 312, 315-16, 515 F.Supp. 780, 785 (1981) (citations omitted). Statutory deadlines are usually directory and not mandatory when "no restraint is affirmatively imposed on the doing of the act after the time specified and no adverse consequences are imposed for the delay." Philipp Bros., Inc. v. United States, 10 CIT ----, ----, 630 F.Supp. 1317, 1323 (1986).

Defendant argues that there are no adverse consequences imposed by the last sentence in § 1504(d) if Customs fails to liquidate within 90 days and therefore the provision is directory. In opposition, plaintiffs argue it would be redundant to reiterate the consequence of deemed liquidation previously set forth in...

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26 practice notes
  • Court of International Trade decisions during 2010 under 28 U.S.C. s. 1581(i) residual jurisdiction.
    • United States
    • Georgetown Journal of International Law Vol. 43 Nbr. 1, September 2011
    • September 22, 2011
    ...2d at 1315-19 (discussing the background of the litigation). (38.) Id. at 1319 (citing Canadian Fur Trappers Corp. v. United States, 691 F. Supp. 364, 367 (Ct. Int'l Trade 1988)). (39.) Id. (40.) Id. at 1320. (41.) 17 Ct. Int'l Trade 498 (1993). (42.) 19 U.S.C. [section] 1515(a). (43.) Id. ......
  • 812 F.Supp. 222 (CIT. 1993), 92-01-00019, Sea-Land Service, Inc. v. United States
    • United States
    • Federal Cases Court of International Trade
    • January 28, 1993
    ...repair regulation 4.14 is directory and not mandatory within the purview of Canadian Fur Trappers Corp. v. United States, 12 CIT 612, 691 F.Supp. 364 (1988), aff'd, 884 F.2d 563 (1989). Canadian Fur Trappers, however, is inapposite to the case at hand. In Canadian Fur Trappers, plaintiffs c......
  • 984 F.Supp. 621 (CIT. 1997), 94-10-00589, American Permac, Inc. v. United States
    • United States
    • Federal Cases Court of International Trade
    • November 12, 1997
    ...was lifted. In making this argument, plaintiff attempts to distinguish Canadian Fur Trappers Corp. v. United States, 12 CIT 612, 691 F.Supp. 364 (1988), aff'd, 7 Fed. Cir. (T) 136, 884 F.2d 563 (1989), in which the Court clearly held the ninety-day period in § 1504(d) of the pre-NAFTA Imple......
  • 851 So.2d 266 (Fla.App. 5 Dist. 2003), 5D02-2308, Town of Oakland v. Mercer
    • United States
    • Florida Florida Court of Appeals Fifth District
    • August 1, 2003
    ...than given deadlines); Bhd. of Ry. Carmen Div. v. Pena, 64 F.3d 702, 704 (D.C. Cir. 1995); Canadian Fur Trappers Corp. v. United States, 691 F.Supp. 364, 12 Ct. Int'l Trade 612, 615 (1988) (holding that a statutory time period is not mandatory unless it both expressly requires an agency or ......
  • Free signup to view additional results
25 cases
  • 812 F.Supp. 222 (CIT. 1993), 92-01-00019, Sea-Land Service, Inc. v. United States
    • United States
    • Federal Cases Court of International Trade
    • January 28, 1993
    ...repair regulation 4.14 is directory and not mandatory within the purview of Canadian Fur Trappers Corp. v. United States, 12 CIT 612, 691 F.Supp. 364 (1988), aff'd, 884 F.2d 563 (1989). Canadian Fur Trappers, however, is inapposite to the case at hand. In Canadian Fur Trappers, plaintiffs c......
  • 984 F.Supp. 621 (CIT. 1997), 94-10-00589, American Permac, Inc. v. United States
    • United States
    • Federal Cases Court of International Trade
    • November 12, 1997
    ...was lifted. In making this argument, plaintiff attempts to distinguish Canadian Fur Trappers Corp. v. United States, 12 CIT 612, 691 F.Supp. 364 (1988), aff'd, 7 Fed. Cir. (T) 136, 884 F.2d 563 (1989), in which the Court clearly held the ninety-day period in § 1504(d) of the pre-NAFTA Imple......
  • 851 So.2d 266 (Fla.App. 5 Dist. 2003), 5D02-2308, Town of Oakland v. Mercer
    • United States
    • Florida Florida Court of Appeals Fifth District
    • August 1, 2003
    ...than given deadlines); Bhd. of Ry. Carmen Div. v. Pena, 64 F.3d 702, 704 (D.C. Cir. 1995); Canadian Fur Trappers Corp. v. United States, 691 F.Supp. 364, 12 Ct. Int'l Trade 612, 615 (1988) (holding that a statutory time period is not mandatory unless it both expressly requires an agency or ......
  • 704 F.Supp.2d 1315 (CIT 2010), 09-00191, Hitachi Home Electronics (America), Inc. v. United States
    • United States
    • Federal Cases Court of International Trade
    • April 30, 2010
    ...act after the time specified and no adverse consequences are imposed for the delay." Canadian Fur Trappers Corp. v. United States, 691 F.Supp. 364, 367 (CIT 1988) (internal quotation marks and citation Here, neither the statute nor the regulations specifies any consequences for the fai......
  • Free signup to view additional results
1 books & journal articles
  • Court of International Trade decisions during 2010 under 28 U.S.C. s. 1581(i) residual jurisdiction.
    • United States
    • Georgetown Journal of International Law Vol. 43 Nbr. 1, September 2011
    • September 22, 2011
    ...2d at 1315-19 (discussing the background of the litigation). (38.) Id. at 1319 (citing Canadian Fur Trappers Corp. v. United States, 691 F. Supp. 364, 367 (Ct. Int'l Trade 1988)). (39.) Id. (40.) Id. at 1320. (41.) 17 Ct. Int'l Trade 498 (1993). (42.) 19 U.S.C. [section] 1515(a). (43.) Id. ......