HQ 221130: 19 U.S.C. 1501; reliquidation not valid when made prior toliquidation; protest 1001-4-000562

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 221130

                         January 5, 1993

LIQ-1-CO:R:C:E 221130 C

CATEGORY:  Entry/Liquidation

Area Director of Customs
6 World Trade Center
Room 423
New York, NY 10048

RE:  19 U.S.C. 1501; reliquidation not valid when made prior to
liquidation; protest 1001-4-000562

Dear Sir/Madam:

     This responds to the referenced protest and application for
further review.

     This case involves the unusual situation where reliquidation
precedes liquidation.  The reliquidation was at a higher duty
rate than the liquidation.  PROTESTANT therefore urges that the
reliquidation be held invalid and the liquidation be deemed
valid.

     The instant protest asks which will represent the final,
legal liquidated duty assessment, the reliquidation or the
liquidation.  In the ordinary case, the reliquidation supercedes
the liquidation.  To determine which supercedes which in the
instant case, a look at 19 U.S.C. 1501 is illuminating:

          A liquidation made in accordance with section
          1500 of this title or any reliquidation
          thereof made in accordance with this section
          may be reliquidated in any respect by the
          appropriate customs officer on his own
          initiative, notwithstanding the filing of a
          protest, within ninety days from the date on
          which notice of the original liquidation is
          given to the importer, his consignee or agent
          . . .

     The foregoing language authorizes Customs to reliquidate
either a (1) liquidation or a (2) reliquidation.  Since a
reliquidation, by definition, cannot occur until there has been a
liquidation, Customs authority to reliquidate under section 1501
is absolutely dependent upon the occurrence, or performance, of
an initial liquidation.  This is eminently clear in the
highlighted language above.  Therefore, no action by Customs
under the authority of section 1501 is legally possible until
there has been a liquidation.

     In the instant case, at the time of reliquidation, there had
not yet been a liquidation.  Logically, there was nothing to
reliquidate.  Legally, Customs was without authority to act under
section 1501.  Customs action, taken purportedly under the
authority of section 1501, was not a valid exercise of that
authority.

     On the other hand, the liquidation, which occurred two days
after the reliquidation, was apparently made in accordance with
the law and regulations, notwithstanding the unusual fact that it
was preceded by a reliquidation.  Since the reliquidation was
invalid, the liquidation represents the only legally valid
assessment of duties.  If Customs had wanted to apply a different
duty rate or classification to the merchandise, it could have
done so after the liquidation under the authority of section
1501.  Customs failed to avail itself of this option.

     In summary, the reliquidation under 19 U.S.C. 1501 was
invalid because it occurred before liquidation.  The liquidation
was proper and valid.  Customs could have rectified the situation
by reliquidating within 90 days after liquidation but failed to
do so.

     Based on the foregoing, you are instructed to grant the
protest and refund appropriate duties.

                               Sincerely,




                               John Durant, Director
                               Commercial Rulings Division