CBP Rules on Ability to Reliquidate Entries Deemed Liquidated
CBP acted properly when it reliquidated an entry of polyester staple fiber at a higher antidumping (AD) duty rate than when it was deemed liquidated, the agency said in an April 18 ruling. The ruling, HQ H215035, came in response to a protest from the importer, Consolidated Fibers. CBP found that it has 90 days to reliquidate an entry that was deemed liquidated, and that the 90 days runs from the date of the notice of deemed liquidation, not from the date of deemed liquidation itself. CBP made the decision after conducting a further review that was "warranted" because it "involves questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee, or by the Customs courts," said CBP.
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Consolidated Fibers made an entry of polyester staple fiber exported by Dongwoo Industry Co. from Korea in December 2005. Dongwoo didn't have its own AD duty rate, so the all others rate of 7.91% applied for cash deposit purposes, said CBP. Commerce then conducted an administrative review of the period covering Consolidated Fibers' entry to calculate assessment rates. This time, it gave Dongwoo its own rate of 48.14%, and in January 2008 sent instructions telling CBP to lift suspension of liquidation and liquidate entries at that rate that were exported or produced by Dongwoo from May 1, 2005 to April 30, 2006.
Once suspension of liquidation is lifted, CBP has six months to liquidate. But CBP didn’t liquidate Consolidated Fibers’ entry at the new higher rate, so the entry deemed liquidated on June 10, 2008 at the 7.91% cash deposit rate. CBP says it didn’t realize the entry had deemed liquidated until May 2011, and at that point posted a notice of deemed liquidation at the customs house. At that point, it “sent Consolidated Fibers a CF 29 stating that it had rate advanced the entry with interest" and on July 22, 2011, CBP reliquidated the entry at Dongwoo’s 48.14% separate rate "as instructed by Commerce." Consolidated Fibers protested the port reliquidation, saying it was too late for the port to reliquidate the entry as it was already deemed liquidated at a lower rate.
CBP disagreed that the reliquidation was improper. The agency said changes to 19 USC 1501 made by Congress in 2004 allow CBP to reliquidate entries that have deemed liquidated. CBP also pointed to its regulations at 19 CFR 173.3, which allows the port director to reliquidate "on his own initiative" within 90 days from the date the notice of deemed liquidation is given to the importer. Regardless of when the entry deemed liquidated, CBP posted its notice of deemed liquidation in May of 2011 and reliquidated the entry in July. Therefore, CBP's reliquidation was timely because it was within that 90 days, the agency said.