LIQ-1
OT:RR:CTF:ER
H291416 HvB
Port Director
U.S. Customs and Border Protection
POE—Hidalgo
9901 S. Cage Boulevard
Suite B
Pharr, TX 78577
RE: Application for Further Review for Protest number 2305-17-100012; RB Logistics LLC; Reliquidation
Dear Port Director:
This is in response to the Application for Further Review (“AFR”) of Protest No. 2305-17-100012, filed on June 7, 2017, by Givens & Johnston, PLLC, on behalf of importer RB Logistics (“Protestant”), concerning seven entries of mangos. Our decision is set forth below.
FACTS:
In 2013, the Protestant imported mangoes from Mexico into the Port of Hidalgo, Texas (“the Port”), claiming preferential treatment under the North American Free Trade Agreement (“NAFTA”) for the mangoes via seven entries. The seven entries occurred on March 22, March 23, March 26, and March 27, 2013. On January 31, 2014 and February 7, 2014, the Port liquidated the entries, without change. On February 17, 2017, the Port reliquidated the entries with an increase in duties owed.
On June 7, 2017, RB Logistics filed the present protest and request for further review, claiming that the Port’s decision to reliquidate the entries was inconsistent with Headquarters Ruling Letter (“HQ”) W563043, dated October 18, 2006. On September 14, 2017, the Port denied the protest, and granted the request for further review. In denying the protest, the Port stated that “re-liquidation of the entries was timely according to 19 C.F.R. § 163.6(b)(2)(B).” RB Logistics asserts that the entries deemed liquidated between September 18 and 23, 2014, upon expiration of the 180-day liquidation deadline. RB Logistics therefore contends that CBP unlawfully reliquidated the entries in February 2017. It asserts that it did not receive notice that CBP had extended the liquidation of any the entries. In addition, RB Logistics claims to the best of its knowledge, that CBP never attempted to extend the period of liquidation for the entries. In protesting CBP’s liquidation of the entries, RB Logistics asserts: 1) that the entries deemed liquidated no later than September 23, 2014, because CBP failed to issue notices to extend liquidation; and 2) that if the entries are not deemed liquidated, then CBP erred in changing the tariff classification for certain items; thereby, increasing the duty owed by RB Logistics.
ISSUE:
Whether the entries at issue were lawfully re-liquidated under 19 U.S.C. § 1509 and 19 C.F.R. § 163.6(b)(2)(B)?
LAW AND ANALYSIS:
As an initial matter, we note that a claimant may protest the liquidation or reliquidation of an entry by CBP pursuant to 19 U.S.C. § 1514(a)(5). RB Logistics timely filed its protest on June 7, 2017, which is within 180 days of February 17, 2017, the date of reliquidation. Moreover, upon review of the AFR, we find that RB Logistics’ Protest alleges that the Port’s decision was inconsistent with a ruling by CBP. Therefore, further review is warranted pursuant to 19 C.F.R. § 174.24(a).
In protesting CBP’s liquidation of the entries, RB Logistics asserts that the entries deemed liquidated no later than September 23, 2014, because CBP failed to issue notices to extend liquidation. As explained below, we determine that the entries did not deem liquidate as entered but, that the reliquidation of the entries was contrary to law. Consequently, the January 31, 2014, and February 7, 2014, liquidations of the entries became final 180 days after these liquidations, per 19 U.S.C. § 1514.
Per 19 U.S.C § 1514, liquidation of entries becomes final unless one of two events occurs within the prescribed time: a protest is timely filed, or a suit is filed contesting the denial of the protest. 19 U.S.C. § 1514(a). When the protest is filed by the importer, as is the case here, the protest must be filed within 180 days of liquidation of the decision protested. One hundred and eighty days from the first liquidation, January 31, 2014, is July 30, 2014. One hundred and eighty days from February 7, 2014, the second date of liquidation, was August 6, 2014. There is no evidence to suggest that RB Logistics filed any protests against the liquidation of these entries by either July 30, 2014, or August 6, 2014. Accordingly, because neither of the two events stated in 19 U.S.C. 1514(a) occurred here, the January 31, 2014, and February 7, 2014, liquidations became final after, in this case, the 180 days for filing a protest elapsed on July 30 and August 6, 2014, respectively.
The Port represents that re-liquidation was timely under 19 C.F.R. § 163.6(b)(2)(B). This provision allows the Port, inter alia, to demand entry records and to reliquidate the entries if the entries were liquidated “within the 2-year period preceding the date of the demand,” pursuant to 19 U.S.C. § 1509. 19 C.F.R. § 163.6(b)(2)(B). However, there is no evidence provided by the port or in the Automated Commercial Environment (ACE), CBP’s system of record, to indicate that CBP made a demand for entry records for the entries at issue. Absent a demand for entry records, CBP may not reliquidate the entries in accordance with 19 C.F.R. § 163.6(b)(2)(B). Consequently, the February 17, 2017 reliquidation of the entries at issue are contrary to law.
HOLDING:
The Protest is GRANTED because the port lacked the authority to reliquidate the entries under 19 U.S.C. § 1509 and 19 C.F.R. § 163.6(b)(2)(B). Accordingly, the original liquidations are applicable and final.
Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (“CROSS”) at https://rulings.cbp.gov/ which can be found on the U.S. Customs and Border Protection website at http://www.cbp.gov and other methods of public distribution.
Sincerely,
for Gregory Connor, Acting Director Commercial and Trade Facilitation Division