OT:RR:CTF:EPDR H305367 ND
Category: Entry
Center Director
Agriculture and Prepared Products
Center of Excellence and Expertise
One World Trade Center Suite 50.200
New York, NY 10007
Attn: Pamela Jorgensen, Import Specialist
Re: Application for Further Review of Protest Number 3801-19-100535; Honey from the People’s Republic of China; A-570-863; Antidumping Duties; Deemed Liquidation; 19 U.S.C. § 1504(d); Voluntary Reliquidation; 19 U.S.C. § 1501
Dear Center Director:
The purpose of this decision is to address the Application for Further Review (“AFR”) of Protest Number 3801-19-100535, filed by CPNA International Ltd. (“CPNA”) on June 27, 2019, regarding the assessment of antidumping duties (“ADD”) pursuant to ADD case number A-570-863. This protest is designated as the lead protest and addresses the identical facts, issues, and arguments presented in protest numbers 2704-19-103775, 3501-19-100105, 3001-19-100313, 2904-19-100039, 3801-19-100481, and 1303-19-100290.
FACTS:
The instant protest concerns imports of honey from the People’s Republic of China (“China”). Certain honey products from China are subject to the ADD order in case number A-570-863 (“ADD Order”). See Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order; Honey From the People’s Republic of China, 66 Fed. Reg. 63,670 (Dec. 10, 2001); see also Notice of Final Determination of Sales at Less Than Fair Value; Honey From the People’s Republic of China 66 Fed. Reg. 50,608 (Oct. 4, 2001). The publication of the ADD Order included the U.S. Department of Commerce’s (“Commerce”) critical circumstances determinations for honey “exported/manufactured” by several entities, including Zhejiang Native Produce and Animal By-Products Import and Export Corp. (“Zhejiang”) for whom Commerce assigned a “[manufacturer]/producer exporter” specific ADD cash deposit rate of 25.88%. Id.; see also Message No. 1353202 (Dec. 19, 2001)
On September 3, 2003, CPNA entered a single entry, number XXX-XXXX808-1, of honey from China. According to the Automated Commercial Environment (“ACE”), the manufacturer of the subject honey was Zhejiang, and CPNA paid ADD cash deposits at the 25.88% rate attributed to Zhejiang as “exporter/manufacturer.” Thereafter, U.S. Customs and Border Protection (“CBP”) suspended liquidation of entry number XXX-XXXX808-1 pursuant to the ADD Order and notified CPNA of the suspension on September 20, 2003.
Following publication of the ADD Order, Zhejiang and other entities challenged several aspects of the ADD Order in several different litigations at the United States Court of International Trade (“CIT”), with three cases of relevance to entry number XXX-XXXX808-1. In each of these three litigations, the CIT imposed an injunction enjoining liquidation of certain entries, leading to confusion over the proper treatment of entry number XXX-XXXX808-1 at issue in this protest. We review each of these litigations and accompanying injunctions below.
Zhejiang Native & Animal By-Prods. Imp. & Exp. Co. v. United States, Court No. 02-00064 (“Zhejiang I”).
This litigation arose from a challenge by several entities, including Zhejiang, of the International Trade Commission’s (“ITC”) affirmative material injury determination that preceded Commerce’s final determination of sales of honey from China at less than fair value (“LTFV”). The CIT initially stayed the matter on May 16, 2002, lifted the stay, and then issued a second stay on January 30, 2008, pending the final disposition of Zhejiang Native Produce & Animal By-Prods. Imp. & Exp. Group Corp. v. United States, Court No. 02-00057 (detailed below).
On February 5, 2015, after the final disposition of Court No. 02-00057 by the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”), the CIT issued a temporary restraining order (“TRO”) enjoining liquidation of entries (1) subject to the administrative determination published in 66 Fed. Reg. 63,670 (Dec. 10, 2001); (2) produced, exported, or imported from China by Zhejiang, among other entities; and (3) entered or withdrawn from warehouse for consumption between May 11, 2001, and February 5, 2015. See Commerce Message No. 5041302 (Feb. 10, 2015).
On April 27, 2015, following the TRO, the CIT issued a preliminary injunction enjoining liquidation of entries of honey from China that were (1) subject to the administrative determination published in 66 Fed. Reg. 63,670 (Dec. 10, 2001); (2) entered on or after May 11, 2001; and (3) exported or imported by Zhejiang, among other entities. See Zhejiang Native Produce & Animal By-Prods. Imp. & Exp. Corp. v. United States, 61 F. Supp. 3d 1358 (Ct. Int’l Trade 2015). In its decision, the CIT first noted that “liquidation has been suspended from the publication in the Federal Register of [Commerce’s] preliminary determination in May 2001.” Id. at 1367; see also Notice of Preliminary Determination of Sales at Less Than Fair Value: Honey From the People’s Republic of China, 66 Fed. Reg. 24,101 (May 11, 2001). The CIT further noted that “[w]ithout the [TRO] entered by the court . . . plaintiffs’ merchandise entered on or after May 11, 2001[,] would have become subject to liquidation on December 1, 2014[,] when the Federal Circuit issued its mandate [in Court No. 02-00057].” Id. at 1367. Finally, the CIT noted that “[i]t was not until the Federal Circuit issued its mandate on October 10, 2014, following a final decision in plaintiffs’ challenge to Commerce’s LTFV determination [Court No. 02-00057], that liquidation of the entries was no longer enjoined and the merchandise became susceptible to liquidation.” Id. at 1363. In accordance with the injunction, Commerce directed CBP to continue suspending liquidation of subject entries, including entry number XXX-XXXX808-1. See Message No. 5128303 (May 8, 2015).
On March 22, 2017, the CIT issued a final decision in Zhejiang I, dissolving both the TRO and injunction in the process. See Zhejiang Native Produce & Animal By-Prods. Imp. & Exp. Corp. v. United States, 217 F. Supp. 3d 1363 (Ct. Int’l Trade 2017). In response to the CIT’s decision, Commerce issued an informational message notifying CBP of the dissolution of all applicable court-ordered injunctions and instructing that it would issue separate liquidation instructions for CBP to liquidate subject entries. See Message No. 8173301 (June 22, 2018). Commerce subsequently issued liquidation instructions in Message No. 8351309, dated December 17, 2018, directing CBP to liquidate entries of honey from China exported by Zhejiang and entered, or withdrawn from warehouse, for consumption between December 1, 2002, and November 30, 2003, at an ADD rate of 34.81%.
Zhejiang Native Produce & Animal By-Prods. Imp. & Exp. Group Corp. v. United States, Court No. 02-00057 (“Zhejiang II”).
This litigation arose from a challenge by several entities, including Zhejiang, of Commerce’s amended final determination of sales of honey from China at LTFV, specifically (1) Commerce’s calculation of ADD margins, (2) Commerce’s critical circumstances determination, and (3) the reliability of certain sources of valuation data. See Zhejiang Native Produce & Animal By-Prod. Imp. & Exp. Corp. v. United States, 28 C.I.T. 1427, 1428 (2004); 66 Fed. Reg. 63,670 (Dec. 10, 2001); 66 Fed. Reg. 50,608 (Oct. 4, 2001).
On March 10, 2003, the CIT issued a preliminary injunction enjoining liquidation of entries of honey from China that remained unliquidated as of March 11, 2003, and that (1) were exported to or imported into the United States by Zhejiang, (2) were the subject of an affirmative critical circumstances finding and entered on or after February 10, 2001, and (3) were the subject of a negative critical circumstances finding and were entered on or after May 11, 2001. See Commerce Message No. 3078201 (Mar. 19, 2003). Commerce thus instructed CBP to continue suspending liquidation of entries subject to this injunction until applicable liquidation instructions were provided. Id.
On August 26, 2004, the CIT dismissed the case and extinguished the preliminary injunction. See Zhejiang Native Produce & Animal By-Products Imp. & Exp. Corp. v. United States, 28 C.I.T. 1427 (2004). After the case was appealed to and remanded by the Federal Circuit, the CIT issued its final decision on June 18, 2013. See Zhejiang Native Produce & Animal By-Prods. Imp. & Exp. Corp. v. United States, 2013 Ct. Int’l. Trade LEXIS 75 (June 18, 2013). The Federal Circuit affirmed the CIT’s finding on October 10, 2014, and subsequently issued its mandate and lifted the preliminary injunction on December 1, 2014. See Zhejiang Native Produce & Animal By-Prods. Imp. & Exp. Corp. v. United States, 580 F. Appx. 906 (Fed. Cir. 2014); see also Zhejiang Native Produce & Animal By-Prods. Imp. & Exp. Corp. v. United States, 61 F. Supp. 3d 1358 (Ct. Int’l Trade 2015).
Shanghai Eswell Enter. Co. v. United States, Court No. 05-00439 (“Eswell”).
This litigation arose from a challenge by several entities, including Zhejiang, of Commerce’s final results of the second administrative review of the ADD order for the period between December 1, 2002, and November 30, 2003 (“second final results”). See Honey from the People’s Republic of China: Final Results and Final Recission, In Part, of Antidumping Duty Administrative Review, 70 Fed. Reg. 38,873 (July 6, 2005).
On July 28, 2005, the CIT, Court No. 05-00439, issued a preliminary injunction enjoining liquidation of entries of honey from China exported by Zhejiang that were entered, or withdrawn from warehouse, for consumption between December 1, 2002, and November 30, 2003. See Commerce Message No. 5215201 (Aug. 3, 2005).
On November 18, 2008, the CIT issued a decision in the matter. See Shanghai Eswell Enter. Co. v. United States, 32 C.I.T. 1233 (Nov. 18, 2008). The CIT’s decision was affirmed by the Federal Circuit. See Shanghai Eswell Enter. Co. v. United States, 350 Fed. Appx. 473 (Fed. Cir. 2009). The injunction was subsequently dissolved on February 3, 2010. See Commerce Message No. 4143310 (May 23, 2014).
On April 14, 2010, Commerce published the amended final results of administrative review in response to the Federal Circuit decision. See Honey From the People’s Republic of China: Notice of Amended Final Results Pursuant to Final Court Decision, 75 Fed. Reg. 19,357 (Apr. 14, 2010). On May 23, 2014, Commerce issued non-public liquidation instructions directing CBP to liquidate entries of honey exported by Zhejiang and imported or sold to certain enumerated entities at a specified ADD rate. See Message No. 4143310 (May 23, 2014). However, Commerce further instructed that liquidation remained suspended for entries of honey exported by Zhejiang and imported or sold to non-enumerated entities, including CPNA, pursuant to the preliminary injunction in Court No. 02-00057. Id.; see also Message No. 3078201 (Mar. 19, 2003).
Returning to the facts at issue in this protest, on January 11, 2019, CBP liquidated entry number XXX-XXXX808-1, assessing an ADD rate of 34.81%, pursuant to Commerce’s liquidation instructions in Message No. 8351309, dated December 17, 2018. CBP subsequently reliquidated the entry on March 22, 2019, and April 5, 2019, to correct the amount of interest owed.
CPNA filed protest number 3801-19-100535 on June 27, 2019, protesting CBP’s liquidation with the assessment of ADD at the 34.81% rate. CPNA makes two primary arguments. First, CPNA alleges that CBP’s suspension of liquidation of entry number XXX-XXXX808-1 was unlawful. According to CPNA, CBP improperly maintained its entry in suspended status between the May 5, 2004, publication in the Federal Register of the final results of the first administrative review (“first final results”) and the February 23, 2015, TRO imposed by the CIT in Court No. 02-00064. Thus, CPNA alleges that its entry deemed liquidated on November 5, 2004, six months after the May 5, 2004, publication of first final results. See Honey From the People’s Republic of China: Final Results of First Antidumping Duty Administrative Review, 69 Fed. Reg. 25,060 (May 5, 2004). Second, in the alternative, CPNA alleges that entry number XXX-XXXX808-1 deemed liquidated on September 18, 2017, i.e., 180 days after the March 22, 2017, judicial dissolution of the TRO and injunction in Court No. 02-00064.
ISSUE:
Whether entry number XXX-XXXX808-1 deemed liquidated pursuant to 19 U.S.C. § 1504(d) or whether CBP properly liquidated the entry.
LAW AND ANALYSIS:
As an initial matter, we note that this protest meets the criteria for further review. Specifically, it raises questions of fact concerning the liquidation of entry numbers XXX-XXXX808-1, which has not been ruled upon by the Commissioner of CBP or his designee or by the Customs courts. See 19 C.F.R. § 174.24(b). Additionally, we note that this protest was timely filed. Pursuant to 19 U.S.C. § 1514(c)(3)(A), a party must file a protest within 180 days after the date of liquidation or reliquidation. CBP first reliquidated entry number XXX-XXXX808-1 on January 11, 2019. CBP reliquidated the entry once again on March 22, 2019. CBP reliquidated the entry for a final time on April 5, 2019. CPNA filed its protest on June 27, 2019, within 180 days of all three dates.
ADD properly assessed by CBP are generally not protestable because CBP’s role in liquidating entries of merchandise subject to an antidumping order is “merely ministerial.” Mitsubishi Elec. Am., Inc. v. United States, 44 F.3d 973, 977 (Fed. Cir. 1994). The courts have consistently held that CBP’s role in the ADD process is simply to follow Commerce’s instructions in collecting deposits of estimated duties and in assessing ADD, together with interest, at the time of liquidation. Id.
Pursuant to 19 U.S.C. § 1673b(d)(2), once Commerce makes an affirmative final determination of dumping, it orders CBP to suspend
liquidation of all entries of merchandise subject to the determination which are entered, or withdrawn from warehouse, for consumption on or after the later of–
(A) the date on which notice of the determination is published in the Federal Register, or
(B) the date that is 60 days after the date on which notice of the determination to initiate the investigation is published in the Federal Register . . .
See also 19 C.F.R. § 158.58 (“[T]he Center director will suspend liquidation on merchandise entered . . . . for consumption, on or after the date of publication of the ‘Notice of Preliminary Affirmative Antidumping Determination,’ ‘Notice of Final Affirmative Antidumping Determination[.]’”). Liquidation of an entry may also be suspended by court order as the CIT “may enjoin the liquidation of some or all entries of merchandise covered by a determination” of Commerce. 19 U.S.C. § 1516a(c)(2).
Under 19 U.S.C. § 1504(d), once a suspension of liquidation required by statute or court order is removed, entries subject to the suspension of liquidation must be liquidated within six months after CBP receives notice of the lifting of suspension, unless such entries are properly extended. If an entry is not liquidated within the six-month period, and CBP does not extend the liquidation, then the entry is deemed liquidated at the rate of duty, value, quantity, and amount of duty asserted by the importer of record. 19 U.S.C. § 1504(d).
Relevant case law dictates what constitutes as notice of the lifting of suspension of liquidation in instances where there is a court ordered suspension pursuant to 19 U.S.C. § 1516a(c)(2). Specifically, notice of the removal of suspension of liquidation must be public and unambiguous. See Cemex, S.A. v. United States, 384 F.3d 1314, 1321 (Fed. Cir. 2004). Additionally, suspension of liquidation pursuant to 19 U.S.C. § 1516a(c)(2) cannot be removed until the time for filing an appeal expires. See Aspects Furniture Int’l, Inc. v. United States, 510 F. Supp. 3d 1353, 1362 (Ct. Int’l Trade 2021) (internal citations omitted). Thus, “the end of the suspension period . . . is a prerequisite for valid notice.” Id. (citing Cemex, S.A., 384 F.3d at 1320). The Court in Aspects further noted that “publication of a court decision in a case does not necessarily result in [CBP’s] receipt of notice that a suspension of liquidation that was in effect during the case has been removed.” Id. (quoting Fujitsu Gen. Am. v. United States, 283 F.3d 1364, 1383 (Fed. Cir. 2002)). As such, the “liquidation period begins on the date CBP receives notice of the removal of the suspension of liquidation, not on the date on which suspension was lifted, to the extent those dates differ.” Id. (internal citations omitted). Accordingly, to the extent that the removal of the suspension of liquidation that occurs as a result of court action rather than a Federal Register publication, the required notice must be provided by a separate mechanism. Id. at fn. 15.
Therefore, for deemed liquidation to occur, “(1) the suspension of liquidation that was in place must have been removed; (2) [CBP] must have received notice of the removal of the suspension; and (3) [CBP] must not liquidate the entry at issue within six months of receiving such notice.” Fujitsu Gen. Am., Inc. v. United States, 283 F.3d at 1376. Moreover, pursuant to 19 U.S.C. § 1501, a liquidation or reliquidation, may be reliquidated in any respect by CBP, notwithstanding the filing of a protest, within 90 days from the date of the original liquidation.
CPNA protests CBP’s liquidation of entry number XXX-XXXX808-1 alleging that the entry deemed liquidated on one of two possible dates. First, CPNA alleges that its entry deemed liquidated on November 5, 2004, six months after the May 5, 2004, publication of the first final results, such that CBP unlawfully maintained the entry in suspended status between the May 5, 2004, publication and the February 23, 2015, TRO imposed by the CIT in Court No. 02-00064. In the alternative, CPNA alleges that entry number XXX-XXXX808-1 deemed liquidated on September 18, 2017, 180 days after the March 22, 2017, judicial dissolution of the TRO and injunction in Court No. 02-00064. According to CBP, it received notice of the lifting of suspension of liquidation through Message No. 8351309, issued on December 17, 2018, and liquidated the entry accordingly pursuant to the instructions.
We first turn to CPNA’s contention that CBP erroneously maintained entry number XXX-XXXX808-1 in suspended status between the May 5, 2004, publication of the first final results and the February 23, 2015, TRO imposed by the CIT in Court No. 02-00064. This argument is without merit. The publication of the first final results, dated May 5, 2004, concerns honey from China entered between February 10, 2001, and November 30, 2002. See 69 Fed. Reg. 25,050 (May 5, 2004). Given that entry number XXX-XXXX808-1 was entered for consumption on September 3, 2003, this publication is inapplicable as the entry date falls within the second administrative review period. See 70 Fed. Reg. 38873 (July 6, 2005).
Moreover, according to ACE, CBP suspended liquidation of entry XXX-XXXX808-1 pursuant to the ADD Order and notified CPNA of the suspension on September 20, 2003. Thus, liquidation of entry number XXX-XXXX808-1 was initially suspended by statute upon entry pursuant to 19 U.S.C. § 1673b(d)(2). See also 19 C.F.R. § 158.58. In addition to the statutory suspension imposed by the ADD Order, the CIT issued its own preliminary injunction in Court No. 02-00057 effective between March 10, 2003, and August 26, 2004, enjoining liquidation of entries of honey from China that (1) remained unliquidated as of March 11, 2003, (2) were exported by Zhejiang, and (3) were the subject of an affirmative critical circumstances finding and entered on or after February 10, 2001. See 19 U.S.C. § 1516a(c)(2); Commerce Message No. 3078201 (Mar. 19, 2003). There is no dispute that this injunction applied to entry number XXX-XXXX808-1. Thereafter, the CIT issued a second injunction and the litigation continued until final disposition on October 10, 2014. While this case proceeded, the CIT imposed a preliminary injunction in Court No. 05-00439 effective between July 28, 2005, and February 3, 2010. See Commerce Message No. 4143310 (May 23, 2014). This injunction applied to entries of honey from China exported by Zhejiang that were entered, or withdrawn from warehouse, for consumption between December 1, 2002, and November 30, 2003. There is similarly no dispute that this injunction applied to entry number XXX-XXXX808-1. Following the expiration of both injunctions in Court Nos. 02-00057 and 05-00439, the CIT in Court No. 02-00064 placed a TRO effective between February 5, 2015, and March 22, 2017, as well as a third injunction effective between April 27, 2015, and March 22, 2017. See Zhejiang Native Produce & Animal By-Prods. Imp. & Exp. Corp. v. United States, 61 F. Supp. 3d 1358 (Ct. Int’l Trade 2015); Zhejiang Native Produce & Animal By-Prods. Imp. & Exp. Corp. v. United States, 217 F. Supp. 3d 1363 (Ct. Int’l Trade 2017). This TRO and injunction applied to entries of honey subject to the administrative determination published in 66 Fed. Reg. 63,670, dated December 10, 2001, produced, exported, or imported from China by Zhejiang, and entered or withdrawn from warehouse for consumption between May 11, 2001, and February 5, 2015. Once again, there is no dispute that this injunction applied to entry number XXX-XXXX808-1.
The statutory suspension of liquidation continued until Commerce published the amended final results of administrative review on April 14, 2010, following the conclusion of the Eswell litigation. See 75 Fed. Reg. 19, 357 (Apr. 14, 2010). Following this publication, Commerce issued liquidation instructions directing CBP to liquidate entries of honey exported by Zhejiang and imported or sold to certain entities. See Message No. 4143310 (May 23, 2014). However, these instructions notified CBP that the court ordered suspension of liquidation remained for non-enumerated imported or sold to entities, such as CPNA, pursuant to the preliminary injunction in Court No. 02-00057. Thus, liquidation of entry number XXX-XXXX808-1 continued to remain suspended during this time pursuant to 19 U.S.C. § 1516a(c)(2). As such, CBP did not unlawfully maintain entry number XXX-XXXX808-1 in suspended status, but rather, it was expressly directed to do so by the CIT and Commerce. See also Message No. 5128303 (May 8, 2015).
Having determined that CBP properly suspended liquidation of entry number XXX-XXXX808-1, we turn to whether the entry deemed liquidated on November 5, 2004, as CPNA alleges. This argument, too, is without merit. The Court in Zhejiang I addressed the liquidation timeline of entries such as XXX-XXXX808-1. According to the CIT, liquidation of subject entries was suspended beginning on May of 2001, and continued until final resolution of Zhejiang II at the end of 2014. See Zhejiang Native Produce & Animal By-Prods. Imp. & Exp. Corp., 61 F. Supp. 3d 1358 (2015). Thus, suspension continued until well after the November 5, 2004, date on which CPNA alleges the entry deemed liquidated. The first requirement of deemed liquidation, the lifting of suspension of liquidation, did not occur with the publication in the Federal Register of the first final results as liquidation remained suspended pending Zhejiang I. See 19 U.S.C. § 1516a(c)(2). Accordingly, entry number XXX-XXXX808-1 did not deem liquidate on November 5, 2004.
We turn to CPNA’s second argument that entry number XXX-XXXX808-1 deemed liquidated on September 18, 2017, 180 days after the March 22, 2017, dissolution of the TRO and injunction in Court No. 02-00064. Pursuant to 19 U.S.C. § 1504(d), for deemed liquidation to occur, the suspension of liquidation that was in place must have been removed and CBP must have received notice of the removal of suspension. See Fujitsu Gen. Am., Inc., 283 F.3d at 1376.
The CIT issued a final decision in Zhejiang I on March 22, 2017, and, in turn, dissolved the TRO and injunction. However, the final disposition of Zhejiang I alone did not constitute adequate notice to CBP that the court ordered suspension of liquidation applicable to entry number XXX-XXXX808-1 was lifted. Rather, CBP received notice of the lifting of suspension on June 22, 2018, when Commerce issued Message No. 8173301 notifying CBP of the dissolution of all court-ordered injunctions applicable to entry number XXX-XXXX808-1. As the Court in Aspects explains, “publication of a court decision in a case does not necessarily result in [CBP’s] receipt of notice that a suspension of liquidation that was in effect during the case has been removed.” Aspects Furniture Int’l, Inc., 510 F. Supp. 3d at 1362 (quoting Fujitsu Gen. Am., 283 F.3d at 1383). Consistent with the Court in Aspects, the six-month liquidation period provided for in 19 U.S.C. § 1504(d) could not start tolling until Commerce notified CBP of lifting of suspension which occurred through the issuance of Message No. 8173301 on June 22, 2018. It is of no consequence for purposes of the six-month liquidation timeframe that Commerce issued the operative liquidation instructions in Message No. 8351309 on December 17, 2018, as the suspension of liquidation had already lifted through the issuance of Message No. 8173301 on June 22, 2018. CBP therefore had until December 22, 2018, to liquidate entry number XXX-XXXX808-1. As CBP liquidated the entry on January 11, 2019, more than six months after receiving notice of the lifting of suspension of liquidation applicable to entry number XXX-XXXX808-1, the entry deemed liquidated on December 22, 2018, at the rate of duty, value, quantity and amount of duty asserted by the importer of record.
Notwithstanding the fact that entry number XXX-XXXX808-1 deemed liquidated on December 22, 2018, CBP may voluntarily reliquidate an entry within 90 days of the liquidation date, including a deemed liquidation, pursuant to 19 U.S.C. § 1501. See also Aspects Furniture Int’l, Inc., 510 F. Supp. 3d at 1361 (“[T]he 90-day clock begins to run on the date of the manual liquidation or the date on which an entry deemed liquidated. . .”). Thus, CBP had 90 days from December 22, 2018, or until March 22, 2019, to voluntarily reliquidate entry number XXX-XXXX808-1. On January 11, 2019, CBP reliquidated entry number XXX-XXXX808-1 in accordance with the liquidation instructions it received from Commerce in Message No. 8351309, dated December 17, 2018. This reliquidation was proper and timely in accordance with those instructions. On March 22, 2019, CBP again reliquidated the entry to amend the interest owed by CPNA. This reliquidation, too, was timely as it occurred within 90 days of the December 22, 2018, deemed liquidation date. However, CBP’s final reliquidation on April 5, 2019, once again modifying the interest owed by CPNA, occurred more than 90 days from the December 22, 2018, deemed liquidation date. As such, this reliquidation was untimely. An untimely reliquidation by CBP under 19 U.S.C. § 1501 is not void, but voidable if timely protested. See Philip Morris v. United States, 716 F. Supp. 1479 (CIT 1989); Headquarters Ruling Letter (“HQ”) 222875 (May 15, 1991) (holding that untimely liquidations that were protested timely were void, but untimely liquidations that were not protested timely were final). Accordingly, as CPNA’s protest was timely filed, the reliquidation on April 5, 2019, is void.
HOLDING:
Based on the foregoing, CBP properly and timely reliquidated entry number XXX-XXXX808-1 on January 11, 2019, and March 22, 2019. However, CBP’s April 5, 2019, reliquidation was untimely and is therefore void. The protest should be GRANTED in part.
You are instructed to notify the Protestant of this decision no later than 60 days from the date of this decision. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to this notification. Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel and the public on the Customs Rulings Online Search System (“CROSS”) at https://rulings.cbp.gov/, or other methods of public distribution.
Sincerely,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division