United States v. Great American Insurance Co. of New York
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Opinion
OPINION
Barnett, Judge:
The United States of America (“United States” or “Plaintiff’) sued Great American Insurance Company of New York (“GAIC” or “Defendant”) to recover [1310]*1310$50,000 in unpaid antidumping duties and interest, the limit on a continuous entry-bond that GAIC issued, plus pre- and post-judgment interest, including statutory interest pursuant to 19 U.S.C. § 580 (2006)1 and equitable interest. See generally Compl., ECF No. 2. Plaintiff and Defendant both filed motions for summary judgment; those motions are fully briefed. See Confidential Pl.’s Mot. for Summ. J. and Pl.’s Mem. of Law in Supp. of its Mot. for Summ. J. (“PMSJ”), ECF No. 55; Great Am. Ins. Co. of New York’s Mot. for Summ. J. and Supporting Mem. of Law, ECF No. 47; Mem. of Law in Supp. of the Def.’s, Great Am. Ins. Co. of New York, Mot. for Summ. J. (“DMSJ”), ECF No. 48. The court has subject matter jurisdiction pursuant to 28 U.S.C. § 1582. For the reasons discussed below, the court grants Plaintiffs motion for summary judgment, in part, and denies Defendant’s motion for summary judgment.
Standard op Review
The court may grant summary judgment when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law” based on the materials in the record. U.S. Court of International Trade (“USCIT”) Rule 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When both parties move for summary judgment, the court generally must evaluate each party’s motion on its own merits and draw all reasonable inferences against the party whose motion is under consideration. JVC Co. of Am., Div. of US JVC Corp. v. United States, 234 F.3d 1348, 1351 (Fed. Cir. 2000). Ultimately, the court’s function is “not ... to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249, 106 S.Ct. 2505. A dispute about a material fact is genuine when it “may reasonably be resolved in favor of either party.” Id. at 249-50, 106 S.Ct. 2505 (to defeat summary judgment, the opponent must do more than present evidence that is “merely colorable” or “not significantly probative,” rather, the opponent must present sufficient evidence on a disputed factual issue tending to show that “a jury [could] return a verdict for that party”).
USCIT Rule 54(b) governs the entry of partial summary judgment. Rule 54(b) provides that “[w]hen an action presents more than one claim for relief, ... the court may direct entry of a final judgment as to one or more but fewer than all claims ... only if the court expressly determines that there is no just reason for delay.” USCIT Rule 54(b).
Background
I. Material Facts Not Genuinely in Dispute
Pursuant to USCIT Rule 56(c)(1)(A), movants are to present material facts as short and concise statements, in numbered paragraphs, with citations to “particular parts of materials in the record” as support. See USCIT Rule 56.3(a)(“factual positions described in Rule 56(c)(1)(A) must be annexed to the motion in a separate, short and concise statement, in numbered paragraphs”). In responsive papers, the opponent “must include correspondingly numbered paragraphs responding to the numbered paragraphs in the statement of the movant.” USCIT Rule 56.3(b). “If a party fails to properly ... address another party’s assertion of fact as required by Rule 56(c), the court may ... consider the fact undisputed for purposes of the motion.” USCIT Rule 56(e)(2).
Parties submitted separate statements of undisputed material facts with their re[1311]*1311spective motions and responses to the opposing party’s statements. See Confidential Pl.’s Statement of Undisputed Facts (“PSOF”), ECF No. 55;2 Def., GAIC’s, Objs. to the Pl.’s Statement of Undisputed Facts (“Def.’s Resp. to PSOF”), ECF No. 52-2; Uncontested Material Facts (“DSOF”), ECF No. 48 (pp. 11-12); Pl.’s Resp. to Def.’s Statement of Undisputed Facts (“PL’s Resp. to DSOF”), ECF No. 61. Upon review of Parties’ facts (and supporting documents), the court finds the following material facts not genuinely disputed.3
A. Overview of the Bond and Entry at Issue
On July 29, 2003, GAIC issued a $50,000 continuous bond to secure the payment of duties, taxes, and charges on merchandise imported by Orleans Furniture Inc. (“Orleans Furniture”). PSOF ¶ 1; Def.’s Resp. to PSOF.4 The bond had an effective date of August 22, 2003, and a termination date of August 31, 2007. PSOF ¶ 2; Def.’s Resp. to PSOF.
On June 1, 2006, Orleans Furniture made one entry (Entry Number 322-5581818-2) of parts of wooden bedroom furniture from the People’s Republic of China.5 PSOF ¶ 2; Def.’s Resp. to PSOF; DSOF ¶ 1; Pl.’S RESP. TO DSOF ¶ 1.6 On the Entry Summary, Orleans Furniture identified the relevant antidumping duty (“AD”) order and exporter using Commerce case number “A-570-890-101.” PSOF ¶ 4; Def.’s Resp. to PSOF.7 Com[1312]*1312merce case number A-570-890-101 is associated with exporter Gaomi Yatai Wooden Ware Co., Ltd. (“Gaomi Yatai”). PSOF ¶ 10.8 Commerce later determined that the exporter was Company X.9 PSOF ¶12; Def.’s Resp. to PSOF. Exports from Company X are subject to the China-wide rate. PSOF ¶ 12; Def.’s Resp. to PSOF.
B. Antidumping Duty Order and Administrative Review
On November 17, 2004, Commerce issued its final determination of sales at less than fair value in the antidumping duty investigation of wooden bedroom furniture from the People’s Republic of China (“PRC” or “China”). DSOF ¶ 2; Pl.’s Resp. to DSOF ¶ 2; see also Wooden Bedroom Furniture From the People’s Republic of China, 69 Fed. Reg. 67,313 (Dep’t of Commerce Nov. 17, 2004) (final determination of sales at less than fair value); Wooden Bedroom Furniture From the People’s Republic of China, 70 Fed. Reg. 329 (Dep’t of Commerce Jan. 4, 2005) (notice of am. final determination of sales at less than fair value and antidumping duty order).10
On March 7, 2007, Commerce initiated an administrative review of wooden bedroom furniture imported from China for the period of review (“POR”) from January 1, 2006 to December 31, 2006 (the “2006 POR”). PSOF ¶ 13; Def.’s Resp. to PSOF; see also Wooden Bedroom Furniture From the People’s Republic of China, 72 Fed. Reg. 10,159 (Dep’t of Commerce March 7, 2007) (notice of initiation of admin. review of the antidumping duty order). The liquidation of entries subject to the review was suspended pending completion of the review. PSOF ¶ 13; Def.’s Resp. to PSOF; DSOF ¶ 3; Pl.’s Resp. to DSOF ¶ 3.
On August 20, 2008, Commerce published the final results of its review. PSOF ¶ 14; Def.’s Resp. to PSOF; see also Wooden Bedroom Furniture From the People’s Republic of China, 73 Fed. Reg. 49,162 (Dep’t of Commerce Aug.
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OPINION
Barnett, Judge:
The United States of America (“United States” or “Plaintiff’) sued Great American Insurance Company of New York (“GAIC” or “Defendant”) to recover [1310]*1310$50,000 in unpaid antidumping duties and interest, the limit on a continuous entry-bond that GAIC issued, plus pre- and post-judgment interest, including statutory interest pursuant to 19 U.S.C. § 580 (2006)1 and equitable interest. See generally Compl., ECF No. 2. Plaintiff and Defendant both filed motions for summary judgment; those motions are fully briefed. See Confidential Pl.’s Mot. for Summ. J. and Pl.’s Mem. of Law in Supp. of its Mot. for Summ. J. (“PMSJ”), ECF No. 55; Great Am. Ins. Co. of New York’s Mot. for Summ. J. and Supporting Mem. of Law, ECF No. 47; Mem. of Law in Supp. of the Def.’s, Great Am. Ins. Co. of New York, Mot. for Summ. J. (“DMSJ”), ECF No. 48. The court has subject matter jurisdiction pursuant to 28 U.S.C. § 1582. For the reasons discussed below, the court grants Plaintiffs motion for summary judgment, in part, and denies Defendant’s motion for summary judgment.
Standard op Review
The court may grant summary judgment when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law” based on the materials in the record. U.S. Court of International Trade (“USCIT”) Rule 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When both parties move for summary judgment, the court generally must evaluate each party’s motion on its own merits and draw all reasonable inferences against the party whose motion is under consideration. JVC Co. of Am., Div. of US JVC Corp. v. United States, 234 F.3d 1348, 1351 (Fed. Cir. 2000). Ultimately, the court’s function is “not ... to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249, 106 S.Ct. 2505. A dispute about a material fact is genuine when it “may reasonably be resolved in favor of either party.” Id. at 249-50, 106 S.Ct. 2505 (to defeat summary judgment, the opponent must do more than present evidence that is “merely colorable” or “not significantly probative,” rather, the opponent must present sufficient evidence on a disputed factual issue tending to show that “a jury [could] return a verdict for that party”).
USCIT Rule 54(b) governs the entry of partial summary judgment. Rule 54(b) provides that “[w]hen an action presents more than one claim for relief, ... the court may direct entry of a final judgment as to one or more but fewer than all claims ... only if the court expressly determines that there is no just reason for delay.” USCIT Rule 54(b).
Background
I. Material Facts Not Genuinely in Dispute
Pursuant to USCIT Rule 56(c)(1)(A), movants are to present material facts as short and concise statements, in numbered paragraphs, with citations to “particular parts of materials in the record” as support. See USCIT Rule 56.3(a)(“factual positions described in Rule 56(c)(1)(A) must be annexed to the motion in a separate, short and concise statement, in numbered paragraphs”). In responsive papers, the opponent “must include correspondingly numbered paragraphs responding to the numbered paragraphs in the statement of the movant.” USCIT Rule 56.3(b). “If a party fails to properly ... address another party’s assertion of fact as required by Rule 56(c), the court may ... consider the fact undisputed for purposes of the motion.” USCIT Rule 56(e)(2).
Parties submitted separate statements of undisputed material facts with their re[1311]*1311spective motions and responses to the opposing party’s statements. See Confidential Pl.’s Statement of Undisputed Facts (“PSOF”), ECF No. 55;2 Def., GAIC’s, Objs. to the Pl.’s Statement of Undisputed Facts (“Def.’s Resp. to PSOF”), ECF No. 52-2; Uncontested Material Facts (“DSOF”), ECF No. 48 (pp. 11-12); Pl.’s Resp. to Def.’s Statement of Undisputed Facts (“PL’s Resp. to DSOF”), ECF No. 61. Upon review of Parties’ facts (and supporting documents), the court finds the following material facts not genuinely disputed.3
A. Overview of the Bond and Entry at Issue
On July 29, 2003, GAIC issued a $50,000 continuous bond to secure the payment of duties, taxes, and charges on merchandise imported by Orleans Furniture Inc. (“Orleans Furniture”). PSOF ¶ 1; Def.’s Resp. to PSOF.4 The bond had an effective date of August 22, 2003, and a termination date of August 31, 2007. PSOF ¶ 2; Def.’s Resp. to PSOF.
On June 1, 2006, Orleans Furniture made one entry (Entry Number 322-5581818-2) of parts of wooden bedroom furniture from the People’s Republic of China.5 PSOF ¶ 2; Def.’s Resp. to PSOF; DSOF ¶ 1; Pl.’S RESP. TO DSOF ¶ 1.6 On the Entry Summary, Orleans Furniture identified the relevant antidumping duty (“AD”) order and exporter using Commerce case number “A-570-890-101.” PSOF ¶ 4; Def.’s Resp. to PSOF.7 Com[1312]*1312merce case number A-570-890-101 is associated with exporter Gaomi Yatai Wooden Ware Co., Ltd. (“Gaomi Yatai”). PSOF ¶ 10.8 Commerce later determined that the exporter was Company X.9 PSOF ¶12; Def.’s Resp. to PSOF. Exports from Company X are subject to the China-wide rate. PSOF ¶ 12; Def.’s Resp. to PSOF.
B. Antidumping Duty Order and Administrative Review
On November 17, 2004, Commerce issued its final determination of sales at less than fair value in the antidumping duty investigation of wooden bedroom furniture from the People’s Republic of China (“PRC” or “China”). DSOF ¶ 2; Pl.’s Resp. to DSOF ¶ 2; see also Wooden Bedroom Furniture From the People’s Republic of China, 69 Fed. Reg. 67,313 (Dep’t of Commerce Nov. 17, 2004) (final determination of sales at less than fair value); Wooden Bedroom Furniture From the People’s Republic of China, 70 Fed. Reg. 329 (Dep’t of Commerce Jan. 4, 2005) (notice of am. final determination of sales at less than fair value and antidumping duty order).10
On March 7, 2007, Commerce initiated an administrative review of wooden bedroom furniture imported from China for the period of review (“POR”) from January 1, 2006 to December 31, 2006 (the “2006 POR”). PSOF ¶ 13; Def.’s Resp. to PSOF; see also Wooden Bedroom Furniture From the People’s Republic of China, 72 Fed. Reg. 10,159 (Dep’t of Commerce March 7, 2007) (notice of initiation of admin. review of the antidumping duty order). The liquidation of entries subject to the review was suspended pending completion of the review. PSOF ¶ 13; Def.’s Resp. to PSOF; DSOF ¶ 3; Pl.’s Resp. to DSOF ¶ 3.
On August 20, 2008, Commerce published the final results of its review. PSOF ¶ 14; Def.’s Resp. to PSOF; see also Wooden Bedroom Furniture From the People’s Republic of China, 73 Fed. Reg. 49,162 (Dep’t of Commerce Aug. 20, 2008) (final results of antidumping duty admin, review and new shipper review; 2006); Wooden Bedroom Furniture From the People’s Republic of China, 74 Fed. Reg. 4,916 (Dep’t of Commerce Jan. 28, 2009) [1313]*1313(am. final results of antidumping duty admin. review; 2006). Publication of the final results lifted the suspension of liquidation for entries subject to the review. PSOF ¶ 15; Def.’s Resp. to PSOF.
On January 27, 2009, Commerce issued Message 9027213 instructing Customs to assess antidumping duties at a rate of 216.01% to entries subject to the China-wide rate and identified by Commerce case number A-570-890-000. PSOF ¶ 16; Def.’s Resp. to PSOF; see also PMSJ, Confidential Ex. 3 (“Jan. 27, 2009 Liquidation Instructions”). For all other entries, Commerce ordered Customs to “continue to collect cash deposits of estimated [AD] duties [for the merchandise] at the current cash deposit rates.” PSOF ¶ 17; Def.’s Resp. to PSOF.
C. Court Proceedings Enjoining Liquidation
On February 13, 2009, the court issued a temporary restraining order (“TRO”) enjoining the liquidation of 2006 POR entries from several exporters, including Gaomi Yatai. PSOF ¶ 18 (citing Am. Signature, Inc. v. United States, Consol. Court No. 08-00316, Order (Feb. 13, 2009) (“Am. Signature TRO”), ECF No. 64). The court subsequently issued a preliminary injunction in that case. PSOF ¶ 18 (citing Am. Signature, Consol. Court No. 08-00316, Order (Feb. 24, 2009) (“Am. Signature Prelim. Inj.”), ECF No. 70). Pursuant to the TRO, Commerce issued Message 9055211 instructing Customs to suspend the liquidation of entries exported by Gaomi Yatai for the 2006 POR and identified by Commerce case number A-570-890-101, and which remained unliquidated as of February 19, 2009. PSOF ¶ 19 (citing Feb. 24, 2009 Suspension Instructions).11 A Customs official subsequently entered a notation in CBP’s Automated Commercial Systems (“ACS”) database stating that Entry Number 322-5518182 was “subject to [the] TRO dated 2/13/09 per CBP message 9055211,” and that, therefore, the entry should not be liquidated “absent further instructions.” PSOF ¶ 20; Def.’s Resp. to PSOF; PMSJ, Ex. 5, ECF No. 60 (ACS entry notation). Customs treated the entry as if it had been suspended. PSOF ¶ 21; Def.’s Resp. to PSOF.
When the court dismissed American Signature on May 18, 2009, the injunction dissolved and the suspension of liquidation of entries of merchandise exported by Gaomi Yatai associated with Commerce case number A-570-890-101 was lifted. PSOF ¶ 22 (citing Am. Signature, Consol. Court [1314]*1314No. 08-00316, Order (May 18, 2009), ECF No. 91); Def.’s Resp. to PSOF.
D. Liquidation of the Subject Entry
On June 23, 2009, Commerce issued Message 9174201 instructing Customs to liquidate entries exported by Gaomi Yatai for the 2006 POR and assess an AD duty rate of 32.23 percent. PSOF ¶ 23 (citing PMSJ, Ex. 6 (“June 23, 2009 Liquidation Instructions”)); Def.’s Resp. to PSOF. On September 30, 2009, John Gerace, a Customs Supervisory Import Specialist, attempted to apply the June 23, 2009 Liquidation Instructions to the subject entry. PSOF ¶ 24. In so doing, he learned that Orleans Furniture had used the wrong Commerce case number on the entry documents. PSOF ¶ 24.12 Instead of Gaomi Ya-[1315]*1315tai, the actual exporter was Company X. PSOF ¶ 12; Def.’s Resp. to PSOF. “[Company X] was not entitled to a separate rate, and the correct associated case number was A-570-890-000, to which a corresponding duty rate of 216.01 [percent] applied.” PSOF ¶ 26; Def.’s Resp. to PSOF. Accordingly, the suspension of liquidation of entries exported by Gaomi Yatai identified in Commerce’s February 24, 2009 Suspension Instructions did not apply to the subject entry; instead, publication of the August 20, 2008 Final Results lifted the suspension of liquidation of entries subject to the review, including the subject entry, and the January 27, 2009 Liquidation Instructions directing Customs to apply a 216.01 percent AD duty rate to entries subject to the China-wide rate and identified by Commerce case number A-570-890-000 applied. PSOF ¶¶ 27-28.13
By operation of law, on February 20, 2009, six months after suspension was lifted, the subject entry liquidated (hereinafter referred to as the “deemed liquidation”). PSOF ¶ 29; Def.’s Resp. to PSOF; DSOF ¶ 5; Pl.’s Resp. to DSOF ¶ 5. On December 18, 2009, “the ‘no-change’ liquidation became effective in ACS, and Customs posted a bulletin notice of the deemed liquidation for the [subject entry] on the same date.” PSOF ¶ 33; Def.’s Resp. to PSOF; DSOF ¶ 8; Pl.’s Resp. to DSOF ¶ 8.14
[1316]*1316On January 8, 2010, Customs reliquidated the entry at the correct AD rate of 216.01 percent. PSOF ¶ 35; Def.’s Resp. to PSOF ¶ 35; PSOF ¶ 36.15
E. Protest and Demand for Payment from Surety
On February 4, 2010, Orleans Furniture protested the reliquidation on the basis that AD duties should not have been assessed because the subject merchandise was only “posts” and not finished bedroom furniture. PSOF ¶ 37; Def.’s Resp. to PSOF; see also PMSJ, Ex. 10 (Protest Number 200610100128). Orleans Furniture requested “accelerated disposition” of the protest pursuant to 19 C.F.R. § 174.22, which was subsequently deemed denied. PSOF ¶ 38.16 GAIC did not protest the reliquidation, and neither Orleans Furniture nor GAIC challenged the deemed denial. PSOF ¶ 41; Def.’s Resp. to PSOF.
On April 27, 2010, Customs sent GAIC a “Formal Demand on Surety for Payment of Delinquent Amounts Due.”17 PSOF ¶ 42 (citing Compl., Confidential Ex. C (“612 Report”)).18 GAIC did not protest Customs “chargefs] or exaction[s].” PSOF ¶ 44; Def.’s Resp. to PSOF. On December 15, 2014, Customs sent GAIC a letter demanding payment of $50,000 (the face value of the issued bond). PSOF ¶ 45; Def.’s Resp. to PSOF. '
F. Procedural History
On February 19, 2015, the United States initiated this collection action against GAIC for unpaid antidumping duties and interest. See generally Compl. Earlier in these proceedings, GAIC moved to dismiss the complaint for failure to state a claim on the grounds that Customs lacked authority to reliquidate an entry that had been deemed liquidated and, alternatively, failed to timely reliquidate the entry. See gener[1317]*1317ally Great American Ins. Co. of New York’s Mot. to Dismiss and Supp. Mem. of Law (“Def.’s MTD”), ECF No. 12. The court denied the motion to dismiss, finding that Customs has statutory authority to reliquidate deemed liquidations within 90 days of transmitting notice of the deemed liquidation to importers pursuant to 19 U.S.C. § 1501,19 and the complaint adequately alleged facts showing that Customs had timely reliquidated the subject entry within the 90 day period. See generally United States v. Great American Ins. Co. of New York, 39 CIT -, 121 F.Supp.3d 1288 (2015). The court further found that the ten month delay from the date of the deemed liquidation to the date on which Customs posted notice was not, “as a matter of law,” unreasonable. Id. at 1295.
Pending are the Parties’ motions for summary judgment. Plaintiff moves for summary judgment on the basis that the undisputed material facts establish that the time between the deemed liquidation and the posting of the bulletin notice of the deemed liquidation was reasonable. See generally PMSJ. Defendant raises several grounds for summary judgment; central to its motion, however, is Defendant’s construction of the relevant statutory scheme as affording Customs 90 days (or alternatively, 180 days) from the date on which entries are deemed liquidated to voluntarily reliquidate those entries. See generally DMSJ. For the reasons discussed below, the court grants Plaintiffs motion, in part, and denies Defendant’s motion.
Discussion
I. Defendant’s Ability to Challenge the Reliquidation
Plaintiff asserts two bases for precluding Defendant from challenging the reli-quidation: failure to exhaust administrative remedies and the doctrine of law of the case. The court will address each, in turn.
A. Administrative Exhaustion
Plaintiff argues that, pursuant to 19 U.S.C. § 1514, Defendant is barred from challenging the reliquidation because it failed to protest CBP’s demand for payment (the 612 Report) or challenge the denial of Orleans Furniture’s protest of the reliquidation. PMSJ at 12-13; see also Confidential Pl.’s Reply Mem. of Law in Further Supp. of its Mot. for Summ. J. (“Pl.’s Reply”) at 14-18, ECF No. 57. Defendant responds that the finality provisions stated in § 1514 do not apply to reliquidations pursuant to 19 U.S.C. § 1501. GAIC Mem. of Law in Resp. to Pl.’s Mot. for Summ. J. (“Def.’s Resp.”) at 13, ECF No. 52. Defendant broadly contends that it may raise any defense to the government’s enforcement action without having filed a protest, and, more specifically, that CBP’s reliquidation of an entry deemed liquidated did not have to be protested. Id. at 13-16.20
[1318]*1318a. Legal Framework
Section 1514 governs the finality of CBP’s decisions. In relevant part, it provides that:
(a) [e]xcept as provided in ... section 1501 of this title (relating to voluntary reliquidations), ... any clerical error, mistake of fact, or other inadvertence, ... adverse to the importer, in any entry, liquidation, or reliquidation, and, decisions of the Customs Service ... as to—
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(3) all charges or exactions of whatever character within the jurisdiction of the Secretary of the Treasury;
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(5) the liquidation or reliquidation of an entry, or reconciliation as to the issues contained therein, or any modification thereof, including the liquidation of an entry, pursuant to either section 1500 of this title or section 1504 of this title;
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shall be final and conclusive upon all persons (including the United States and any officer thereof) unless a protest is filed in accordance with this section, or unless a civil action contesting the denial of a protest, in whole or in part, is commenced in the United States Court of International Trade ....
19 U.S.C. § 1514(a) (emphasis added). Either an importer or a surety may protest a decision specified in § 1514(a). See id. § 1514(c)(2) (providing for protests by importers or their sureties); id. § 1514 (c)(1) (noting that “[o]nly one protest may be filed for each entry of merchandise,” but that “separate protests filed by different authorized persons with respect to any one category of merchandise ... are deemed to be part of a single protest”). Additionally, a surety has “180 days from the date of mailing of notice of demand for payment against its bond” to protest a claim against its bond. Id. § 1514(c)(3).
It is well settled that Customs’ findings related to a particular liquidation “merge with the liquidation” and are final and conclusive unless challenged in accordance with § 1514. Volkswagen of Am., Inc. v. United States, 532 F.3d 1365, 1370 (Fed. Cir. 2008); see United States v. Am. Home Assur. Co.(“AHAC (09-403)”), 39 CIT -, -, 100 F.Supp.3d 1364, 1369 (2015).21 Unprotested issues related to the liquidation of the subject entries may not be “raised in any context,” United States v. Cherry Hill Textiles, Inc., 112 F.3d 1550, 1557 (Fed. Cir.1997); that is, the rule of finality “applies to both importer duty recovery suits and to [gjovernment enforcement actions,” AHAC (09-403), 100 F.Supp.3d at 1369.
b. Analysis
i. Section 1514 Applies to Reliquidations
Defendant contends that § 1514 does not apply to reliquidations pursuant to 19 U.S.C. § 1501. Def.’s Resp. at 13.22 In sup[1319]*1319port, Defendant points to the first sentence of 19 U.S.C. § 1514, which governs the finality of Customs’ decisions as to liquidations and reliquidations “[e]xcept as provided in ... section 1501 .... ” See id. at 13.
Defendant misreads the significance of the cited sentence. “Absent clear legislative intent to the contrary, the plain meaning of [a] statute will prevail.” Lynteq, Inc. v. United States, 976 F.2d 693, 699 (Fed. Cir.1992) (citation omitted). Pursuant to § 1514, “absent timely reliquidation or protest,” a liquidation is final and conclusive. Volkswagen, 532 F.3d at 1370 (citation omitted); 19 U.S.C. § 1514. Section 1501 provides for voluntary reli-quidation by CBP of entries affirmatively liquidated pursuant to § 1500 or deemed liquidated pursuant to § 1504. See 19 U.S.C. § 1501. Thus, in the event CBP re-liquidates an entry pursuant to § 1501, the reliquidation—not the original liquidation—becomes “final and conclusive.” See id. § 1514(a)(5)(governing the finality of reliquidations). Thus, Defendant’s argument, which essentially precludes reliquidations pursuant to § 1501 from ever becoming “final and conclusive,” lacks merit.
ii. Defendant is Foreclosed From Challenging Matters Subsumed by the Reliquidation
Defendant also contends that it may raise any defenses to liability in this enforcement action notwithstanding its failure to protest the reliquidation that formed the basis for the charge. Def.’s Resp. at 13-17. Defendant is incorrect.
As an initial matter, the 612 Report that Customs sent to GAIC on April 27, 2010 detailing the importer’s delinquent amounts due constitutes a protestable “decision[ ]” as to a “charge[ ]” for purposes of § 1514(a)(3).23 The basis for Customs’ issuance of the 612 Report involved its substantive determinations regarding the subject entry’s eligibility for reliquidation and the “applicable rate of duty.” See U.S. Shoe Corp., 114 F.3d at 1569. Customs then had to identify the relevant bonds, determine whether the duties owed exceeded the face value of the bonds, determine any applicable rate of interest,24 and issue the demand for payment from the surety. Cf. AHAC (09-403), 100 F.Supp.3d at 1370-71 (Customs decision to seek post-liquidation § 1505(d) interest from the surety constituted a protestable charge; surety’s failure to seek judicial review of denied protests barred it from asserting defenses to § 1505(d) liability). That demand for payment “identif[ied] the name [1320]*1320and address of the delinquent importer, the bill number, billing date, port of entry, document date, entry number, the amount due, and the importer number.” Peerless Ins. Co. v. United States, 12 CIT 1231, 1232-33, 703 F.Supp. 104, 105 (1988) (noting that, “since 1977, Customs has issued its payment demand to sureties containing such information); 612 Report. The court has found that a 612 Report constitutes a protestable “charge” pursuant to § 1514(a)(3). See Hartford Fire Ins. Co. v. United States, 31 CIT 1281, 1286, 507 F.Supp.2d 1331, 1335-36 (2007), aff'd, 544 F.3d 1289 (Fed. Cir. 2008); Hartford Fire Ins. Co. v. United States, Court No. 07-00101, Def.’s Mot. to Dismiss, Ex. A, ECF No. 13 (appending a “Formal Demand on Surety for Payment of Delinquent Amounts Due,” i.e., a 612 Report, as evidence of the charge at issue). Accordingly, Customs’ issuance of the 612 Report triggered a 180 day period during which GAIC could have protested the underlying reliquidation giving rise to the charge. See 19 U.S.C. §§ 1514(a)(3), (c)(3)(B); see also Pope Prods., Div. of Purex v. United States, 15 CIT 279, 283, 1991 WL 117814 (1991) (demand for payment begins the timeframe during which a surety may protest a liquidation).
To support the proposition that it “did not have to file a protest in order to raise any and all defenses available to it in this collection action,” Defendant first relies on United States v. Am. Home Assurance Co. (“AHAC (09-401)”), 39 CIT -, -, 151 F.Supp.3d 1328, 1347-48 (2015). Def.’s Resp. at 14 (emphasis added). However, Defendant misreads AHAC (09-401). There, the court distinguished “protestable matters” related to the entries from “defenses related to [a surety’s] contractual obligations,” for the purpose of determining whether the surety’s defenses were preserved. AHAC (09-401), 151 F.Supp.3d at 1347. To be sure, a surety is not barred from raising contractual defenses in an enforcement action. St. Paul Fire & Marine Ins. Co. v. United States, 959 F.2d 960, 963-64 (Fed. Cir.1992); AHAC (09-401), 151 F.Supp.3d at 1347. Here, however, Defendant’s arguments are not “personal” to the surety’s obligations pursuant to the bond; rather, they concern Customs’ authority to reliquidate the subject entry beyond a specified timeframe. See DMSJ; cf. AHAC 09-401, 151 F.Supp.3d at 1346-48 (surety was not barred from arguing that it was prejudiced by its failure to receive notice of the lifting of suspension); St. Paul Fire, 959 F.2d at 963-64 (surety’s claim that the government knew, but failed to timely disclose, its awareness that the importer was evading customs laws, was “personal” to the surety and “separate and distinct” from the importer’s protest). Defendant’s arguments against liability constitute the type of “collateral ] challenge” to the validity of the reliquidation the Federal Circuit has cautioned the exhaustion requirement of § 1514 was designed to prevent. See Cherry Hill, 112 F.3d at 1557 (permitting sureties to “collaterally challenge the liquidation” in a subsequent enforcement action “would create a gaping hole in the administrative exhaustion requirement of section 1514 and would be inconsistent with the underlying policy of section 1514, which is to channel challenges to liquidations through the protest mechanism in the first instance”); cf. United States v. Utex Int’l Inc., 857 F.2d 1408, 1414 (Fed. Cir. 1988) (permitting surety to defend against the government’s demand for liquidated damages, occurring four years after final liquidation, because the issue did not involve administrative review of the liquidation); Cherry Hill, 112 F.3d at 1555 (construing Utex Int’l to be consistent with barring challenges to the accuracy or validity of a liquidation when those challenges were not protested administratively).
Defendant relies on Cherry Hill to support its alternative argument that it did [1321]*1321not have to file a protest raising a “deemed liquidation defense” to raise that same defense in a subsequent enforcement action. Def.’s Resp. at 15-16 (citing Cherry Hill, 112 F.3d at 1550); see also Cherry Hill, 112 F.3d at 1558 (referring to the “deemed liquidation” defense as a “narrower ground for reversal” than the argument that § 1514 exhaustion was only required in the case of importer recovery suits and not government enforcement actions). Cherry Hill held that because the subject “entry was liquidated by operation of law prior to the October 28, 1988, liquidation, [the surety] was not required to protest the October 28 liquidation in order to be entitled to defend against liability on the ground of the deemed liquidation.” 112 F.3d at 1560. The Federal Circuit created this exception to the protest requirement to prevent CBP from “purport[ing] to liquidate an entry anew, years after the first liquidation had become final, and thereby imposing] liability on the importer or surety if the importer or surety were not vigilant in watching for notice of such untimely liquidations or if it were no longer able to undertake the burden of filing and pursuing a protest.” Id.; see also United States v. Am. Home Assur. Co. (“AHAC (Fed. Cir.)”), 789 F.3d 1313, 1321-22 (Fed. Cir. 2015) (discussing Cherry Hill). Defendant’s reliance on Cherry Hill is misplaced.
First, Cherry Hill interpreted an older version of § 1501, which did not provide for reliquidation of entries deemed liquidated pursuant to § 1504(d).25 See Norsk Hydro Can., Inc. v. United States, 472 F.3d 1347, 1362 n.26 (Fed. Cir. 2006). Accordingly, the Federal Circuit reasoned that the deemed liquidation, and not the subsequent liquidation, “must [] be regarded as final” because the government had failed to demonstrate grounds for treating the subsequent liquidation as a reliquidation and could not simply liquidate the entry anew. See Cherry Hill, 112 F.3d at 1560 (noting, inter alia, that “reli-quidation under 19 U.S.C. § 1501 would not be permitted because that provision applies only to liquidations made in accordance with 19 U.S.C. § 1500, and not to ‘deemed liquidations’ under 19 U.S.C. § 1504”). That reasoning, and, thus, Defendant’s reliance on Cherry Hill is inap-posite in light of the changes to § 1501 affording Customs the authority to reliqui-date deemed liquidations made pursuant to § 1504. See Norsk Hydro, 472 F.3d at 1362 n.26 (recognizing that “deemed liquidations are subject to reliquidation”).
Defendant argues, however, that post-2004 cases “continue to recognize the validity of Cherry Hills’ [sic] holding on [this] point.” Def.’s Resp. at 15 (citing Int’l Custom Prods., Inc. v. United States, 791 F.3d 1329, 1339-40 (Fed. Cir. 2015), AHAC (Fed. Cir.), 789 F.3d at 1322, and Ford Motor Co. v. United States, 35 CIT —, -, 806 F.Supp.2d 1328, 1335 (2011)). The dates of the opinions are irrelevant; each case involves pre-December 3, 2004 entries of merchandise, did not address the relevant statutory scheme, or is otherwise inapposite.26 Accordingly, Defendant’s reliance on these cases is misplaced.
[1322]*1322Second, Defendant has not actually raised the “deemed liquidation defense” to liability contemplated in Cherry Hill. Defendant interprets the “deemed liquidation defense” to mean that a surety does not have to file a protest whenever the original liquidation was by operation of law, but that stretches the defense too far. See Def.’s Resp. at 15-17. As discussed above, Cherry Hill permitted a surety to raise the defense that the subject entry had already deemed liquidated, without first filing a protest, when Customs purported to liquidate (as opposed to reliquidate) the entry anew, and treat that liquidation as the operative liquidation. See Cherry Hill, 112 F.3d at 1560. But that is not what happened here, nor is the mere fact that the entries had deemed liquidated prior to the reliquidation the basis, of Defendant’s defense to liability. See DMSJ (generally contending that Customs waited too long before conducting its statutorily authorized reliquidation of the subject entry that were previously deemed liquidated). Thus, Cherry Hill does not resolve Defendant’s arguments. In sum, Defendant’s challenges to liability involve matters that are subsumed by the reliquidation and, thus, could and should have been raised administratively. Because they were not, Defendant is foreclosed from raising those arguments in this action.
B. Law of the Case
Plaintiff argues that the court’s prior interpretation of the relevant statutory scheme constitutes the law of the case and, thus, Defendant’s contrary arguments should not be revisited. Pl.’s Mem. in Opp’n to Def.’s Mot. for Summ. J. (“Pl.’s Resp.”) at 4-6, ECF No. 61; Pl.’s Reply at 2.27 Defendant contends that a 2016 amendment to 19 U.S.C. § 1501 merits the court’s reconsideration of its arguments. GAIC Reply in Supp. of Def.’s, GAIC, Mot. for Summ. J. (“Def.’s Reply”) at 1-2, ECF No. 58.
a. Legal Framework
The law of the case doctrine “generally bars retrial of issues that were previously resolved.” Intergraph Corp. v. Intel Corp., 253 F.3d 695, 697 (Fed. Cir. 2001) (citing Messenger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 56 L.Ed. 1152 [1323]*1323(1912) (law of the case “expresses the practice of courts generally to refuse to reopen what has been decided”)). The doctrine’s purpose is to “promote[] the finality and efficiency of the judicial process by protecting against the agitation of settled issues.” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988) (citation and internal quotation marks omitted). However, it is well settled that the application of the doctrine is within a court’s discretion, and it “should not be applied woodenly in a way inconsistent with substantial justice.” Hudson v. Principi, 260 F.3d 1357, 1363-64 (Fed. Cir. 2001) (citations omitted). Courts may decline to apply the doctrine upon “the discovery of new and different material evidence that was not presented in the prior action” or “an intervening change of controlling legal authority,” or when “the prior decision is clearly incorrect and its preservation would work a manifest injustice.” Intergraph Corp., 253 F.3d at 698.
Defendant contends that an amendment to § 1501 that took effect on February 24, 2016 applies to entries that entered before that date, or, alternatively, that the amendment constitutes a change in the controlling law meriting reconsideration of Defendant’s prior argument that Congress intended to limit CBP’s ability to reliqui-date entries previously deemed liquidated to within 90 days of the date of the deemed liquidation. Def.’s Reply at 2. In other words, Defendant contends that the 2016 amendment supports its interpretation of the 2004 version of § 1501 in effect when the subject entries were made. See id. Defendant is wrong on both counts.28
i. Overview of the 2016 Amendment
On February 24, 2016, Congress amended § 1501 as follows:
A liquidation made in accordance with section 1500 or 1504 of this title or any reliquidation thereof made in accordance with this section may be reliquidated in any respect by the Customs Service U.S. Customs and Border Protection, notwithstanding the filing of a protest, within ninety days from the date ©a which notice of the original-liquidation is given or transmitted to-the importer, his consignee-or agent of the original liquidation. Notice of such reliquidation shall be given or transmitted in the manner prescribed with respect to original liquidations under section 1500(e) of this title.
Trade Facilitation and Enforcement Act of 2015, Pub. L. No. 114-125, § 911, 130 Stat. 122, 240 (2016) (deletions in strikethrough; additions underlined). In sum, the statute now requires Customs to voluntarily reli-quidate affirmative and deemed liquidations within 90 days from the date of the liquidation, not the date on which notice is provided. See id.
ii. The Amendment is Not Retroactive
The U.S. Supreme Court has recognized that “the presumption against retroactive legislation is deeply rooted in our jurisprudence,” because “individuals should have an opportunity to know what the law is and to conform their conduct accordingly ....” Landgraf v. USI Film Products, 511 U.S. 244, 265, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). However, this presumption is not absolute: “Metro-activity provisions often serve entirely benign and legitimate purposes,” including [1324]*1324correcting mistakes. Id. at 267-68, 114 S.Ct. 1483. Accordingly, the Court has established a framework to determine whether a statute applies retroactively. See Fernandez-Vargas v. Gonzales, 548 U.S. 30, 37, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006) (“This Court has worked out a sequence of analysis when an objection is made' to applying a particular statute said to affect a vested right or to impose some burden on the basis of an act or event preceding the statute’s enactment.”).
First, a court must look to “whether Congress has expressly prescribed the statute’s proper reach.” Id. at 37, 126 S.Ct. 2422 (citing Landgraf, 511 U.S. at 280, 114 S.Ct. 1483). Absent such language, a court should “try to draw a comparably firm conclusion about the temporal reach specifically intended by applying ‘[the court’s] normal rules of construction.’ ” Id. (citing Lindh v. Murphy, 521 U.S. 320, 326, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)). If both efforts fail, a court asks whether the statute has impermissible “retroactive consequence,” defined as an application of the statute that “ ‘affect[s] substantive rights, liabilities, or duties [on the basis of] conduct arising before [its] enactment.’ ” Id. (citing Landgraf, 511 U.S. at 278, 114 S.Ct. 1483).29 To determine whether a statute has retroactive consequence, the court must consider three Landgraf factors: “the ‘nature and extent of the change of the law,’ ‘the degree of connection between the operation of the new rule and a relevant past event,’ and ‘familiar considerations of fair notice, reasonable reliance, and settled expectations.’ ” Princess Cruises, Inc. v. United States, 397 F.3d 1358, 1364 (Fed. Cir. 2005) (quoting Landgraf, 511 U.S. at 270, 114 S.Ct. 1483).30
In this case, § 1501 (as amended in 2016) does not expressly state the statute’s temporal applicability. See 19 U.S.C. § 1501 (2016). Nor do the “normal rules of [statutory] construction” suggest a “comparably firm” determination “about the [statute’s] temporal reach.” Fernandez-Vargas, 548 U.S at 37, 126 S.Ct. 2422 (citing Lindh, 521 U.S. at 326, 117 S.Ct. 2059). Defendant relies on legislative history associated with the 2016 amendment to support retroactivity. Def.’s Reply at 5 (quoting 162 Cong. Rec. S836-02 (daily ed. Feb. 11, 2016) (statements of Senators Hatch and Wyden)); see also DMSJ at 17 n.5. In the floor debate relied on by Defendant, Senators Hatch and Wyden had the following exchange:
Mr. HATCH:
Madam President, the bill we will be voting on shortly contains a provision amending 19 U.S.C. § 1501, which relates to the liquidation of entries into the U.S. The provision in the conference report amending section 1501 is intended to ensure in cases where liquidation occurs by operation of law, the 90-day timeframe for the voluntary reliquidation of an entry by Customs and Border [1325]*1325Protection begins on the date of the original liquidation. I would ask my colleague, Senator Wyden, the ranking member of the Finance Committee, if that is his understanding of this provision as well.
Mr. WYDEN:
Madam President, I agree with Senator Hatch that is the intent of the provision amending 19 U.S.C. § 1501.
162 Cong. Rec. S836-02 (daily ed. Feb. 11, 2016) (statements of Senators Hatch and Wyden) (emphasis added). According to Defendant, Senator Hatch’s use of the phrasing “intended to ensure” was “obviously meant to clarify that Congress intended the 90-day timeframe in the 2004 amendment to also begin on the date of the original liquidation.” Def.’s Reply at 5 (underline omitted). To the contrary, Senator Hatch’s statement simply discusses the effect of the 2016 amendment; it falls far short of a “comparably firm” statement of the amended statute’s temporal reach. See Fernandez-Vargas, 548 U.S. at 37, 126 S.Ct. 2422; Pl.’s Resp. at 20 (“Plainly, the Congressmen were discussing the intent of the amendment that resulted] in the current statute, not the intent of the prior version.”). Accordingly, the court must proceed to the third step of the analysis— consideration of the Landgraf factors.
First, the “nature and extent of the change of the law” is significant because the amendment changes the starting point for computing the time that CBP has to voluntarily reliquidate an entry from the date of notice to the date of the liquidation. See Princess Cruises, 397 F.3d at 1364. Particularly in the context of deemed liquidations, this is significant because those two dates do not necessarily (or even likely) coincide. See 19 C.F.R. § 159.9(c)(ii) (affording Customs “a reasonable period after each liquidation by operation of law” to provide notice); cf. Koyo Corp. of U.S.A. v. United States, 497 F.3d 1231, 1240 (Fed. Cir. 2007) (recounting Customs’ posting of bulletin notices more than 12 months after the subject entries had been deemed liquidated).
Second, there is a strong “degree of connection between operation of the new rule and a relevant past event.” See Princess Cruises, 397 F.3d at 1364. Applying the 2016 amendment to the reliquidation at issue here, which occurred within 90 days of notice but not within 90 days of the deemed liquidation, would void the re-liquidation and result in the under-collection of antidumping duties. See supra Background Sect. I.D; cf Princess Cruises, 397 F.3d at 1366 (noting that retroactive application of the rule in question would result in plaintiff being overcharged).
Finally, “familiar considerations of fair notice, reasonable reliance, and settled expectations” also disfavor retroactive application. See Princess Cruises, 397 F.3d at 1366-67.31 As the Federal Circuit recognized more than a decade ago, § 1501 plainly afforded Customs 90 days from the date on which it posted the bulletin notice to reliquidate the subject entry. See Norsk Hydro, 472 F.3d at 1352. To now hold otherwise implicates fairness and reliance considerations. Cf. Princess Cruises, 397 F.3d at 1364, 1366 (receipt of a letter from a Customs official indicating that Plaintiff would not be subject to harbor maintenance tax for layover-only passengers disfavored retroactive application of a contrary Customs ruling). In sum, because all three Landgraf factors points to an impermissible retroactive effect, CBP’s “sub[1326]*1326stantive rights, liabilities, or duties” would be negatively affected by applying the 2016 amendments to the facts of this case. See Fernandez-Vargas, 548 U.S at 37, 126 S.Ct. 2422; Princess Cruises, 397 F.3d at 1367. Thus, the court must “apply the presumption against retroactivity ... owing to the absen[ce of] a clear indication from Congress that it intended such a result.” Fernandez-Vargas, 548 U.S. at 37-38, 126 S.Ct. 2422 (internal quotation marks and citation omitted).
As to Defendant’s alternative argument—that the amendment supports its interpretation of § 1501 circa 2004—in fact, the opposite is true. See Def.’s Reply at 2. Congress’ amendment to the statute demonstrates that starting the period for reliquidation at the notice of the deemed liquidation is substantively different from starting it at the date on which the entry liquidated by operation of law, otherwise there would be no reason to amend the statute. Absent evidence that Congress intended the 2016 amendment to § 1501 to apply retroactively, the court is guided by the plain language of the statute in effect when the subject entries were made. See Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) (“We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there.”) (citations omitted). Defendant already has raised, and the court has rejected, the argument that the timeframe for voluntary reliquidation begins on the date of the deemed liquidation. See Def.’s MTD; Great American Ins. Co. of New York, 121 F.Supp.3d at 1295 (“[T]he statute is clear that it is the date the notice was transmitted that starts the clock on reliquidation and Customs has 90 days from the date the notice of deemed liquidation is transmitted to reliquidate the entry.”) (citing Norsk Hydro, 472 F.3d at 1352 (“Customs may sua sponte reliquidate an entry, including an entry ‘deemed liquidated,’ within 90 days of its giving notice of the original liquidation to the importer.”)). For that reason, the court declines to reconsider Defendant’s arguments regarding statutory interpretation. The issue that remained unresolved at the motion to dismiss stage, and to which the court now turns, is whether Customs posted the bulletin notice “within a reasonable period.” See 19 C.F.R. § 159.9(c)(ii).
II. Whether Customs Posted the Bulletin Notice Within a Reasonable Time
Plaintiff moves for summary judgment on the grounds that the ten month period between the date of the deemed liquidation and the date on which it posted the bulletin notice is reasonable, particularly in light of Orleans Furniture’s mis-identification of the applicable Commerce case number on the Entry Summary. See PMSJ at 9-12. Defendant responds that 90 days from the date of the deemed liquidation constitutes “[a] reasonable time” within which CBP must post a bulletin notice, Def.’s Resp. at 10, and, further, that the ten month delay at issue in this case is unreasonable, see id. at 7-10.32
[1327]*1327A. Legal Framework
As noted above, § 1501 provides that Customs may reliquidate a deemed liquidation “within ninety days from the date on which notice of the original liquidation is given or transmitted to the importer.” 19 U.S.C. § 1501. Although Congress predicated reliquidation on Customs’ provision of notice of the deemed liquidation, Congress has not, however, mandated that Customs must, in all cases, provide notice of the deemed liquidation. See id. § 1504(a)(1) (“Notwithstanding section 1500(e) of this title, notice of liquidation need not be given of an entry deemed liquidated.”); see also id. § 1500(e) (instructing Customs “to give or transmit” notice of liquidation “in such form and manner as the Secretary shall by regulation prescribe”). Consequently, there is a gap in the statutory scheme because it provides for reliquidation within 90 days of notice that may, or may not, be given. Customs’ regulations fill that gap by requiring the posting of a bulletin notice to provide notice of entries liquidated by operation of law. See 19 C.F.R. § 159.11 (“Notice of liquidation will be given on a bulletin notice of liquidation ... as provided in §§ 159.9 and 159.10(c)(3).”) (emphasis added);33 see also Contreras v. United States, 215 F.3d 1267, 1274 (Fed. Cir. 2000) (“An agency that has been granted authority to promulgate regulations necessary to the administration of a program it oversees may fill gaps in the statutory scheme left by Congress if it does so in a manner that is consistent with the policies reflected in the statutory program.”); New England Tank Industries of New Hampshire, Inc. v. United States, 861 F.2d 685, 694 (Fed. Cir. 1988) (referring to the term “will” as it appears in an agency regulation as a “mandatory term”) (citations omitted). Customs must post the bulletin notice of liquidation in the customhouse “within a reasonable period after each liquidation by operation of law and [it] shall be dated as of the date of expiration of the statutory period.” 19 C.F.R. § 159.9(c)(2)(h).
Parties agree that Customs reliquidated the entry on January 8, 2010, within 90 days of Customs’ December 18, 2009 posting of the bulletin notice. See PSOF ¶ 33; Def.’s Resp. to PSOF; DSOF ¶¶ 8-9; Pl.’s Resp. to DSOF ¶¶ 8-9. Thus, the remaining issue is whether Customs posted the bulletin notice “within a reasonable period” after the subject entry was deemed liquidated on February 20, 2009.
Here, Customs’ delay in posting the bulletin notice is largely attributable to the importer’s erroneous identification on the Entry Summary of the Gaomi Yatai-specific Commerce case number, A-570-890-101, which led Customs to treat it as if liquidation had been suspended pursuant to the TRO and preliminary injunction issued in American Signature. See supra Background Sect. A-C. It was not until September 30, 2009 that a Customs offi[1328]*1328cial, Mr. Gerace, learned that the exporter was Company X, not Gaomi Yatai, that Company X was subject to the China-wide rate, that publication of the August 20, 2008 Final Results had lifted the suspension of liquidation of the subject entry, and that the subject entry had therefore liquidated by operation of law on February 20, 2009. See supra Background Sect. D. This September 30 discovery prompted Customs to process the entry and post the bulletin notice two and a half months later, on December 18, 2009. See id.
Defendant seeks to apply Utex Int’l to support its contention that “it does not matter if a mistake was made or who made the mistake, once an entry is liquidated and not reliquidated within 90 days, it is final and conclusive to everyone[,] including the government.” Def.’s Resp. at 7-8 (citing Utex Int’l, 857 F.2d at 1408). The Federal Circuit decided Utex Int’l before the 2004 amendments to § 1500 providing for voluntary reliquidation of deemed liquidations. See supra note 25. Further, as Plaintiff recognizes, Utex Int’l “simply identifie[s] the well-established principle that ‘the statutory procedures of liquidation, reliquidation, and timely protest control the finality of the importation process,’ ” and that “ ‘absent timely reliquidation or protest,’ ” liquidation is final and conclusive. Pl.’s Resp. at 7 (quoting Utex Int’l, 857 F.2d at 1411, 1412). Utex Int’l does not speak to the reasonableness of the timeframe within which Customs must post a bulletin notice; thus, it does not support Defendant’s position.
Defendant also contends that focusing on the importer’s error “is nothing more than a post-hoc attempt to justify CBP[’s] own negligence” because the Entry Summary otherwise identifies Company X by name and manufacturer identification number. Def.’s Resp. at 11. “At best, ... the documents submitted by the importer ... were internally inconsistent.” Pl.’s Reply at 9. However, Defendant does not dispute the importer’s error or otherwise offer evidence demonstrating that CBP knew the identity of the exporter before September 30, 2009. See supra note 12. Further, the importer is responsible for using “reasonable care” when “completing] the entry” so that Customs may “properly assess duties,” and must certify that the information is “true and correct.” 19 U.S.C. § 1484(a)(1)(B), (d)(1). In sum, although case law is scant on what constitutes reasonableness for purposes of 19 C.F.R. § 159.9(c)(2)(h), reasonableness is an inherently fact-specific inquiry. Based on the foregoing facts, the court finds that Customs posted the bulletin notice “within a reasonable period.” Cf. Koyo Corp., 497 F.3d at 1238 (quoting 19 C.F.R. § 159.9(c)(2)(i)-(ii)).
III. Status of Administrative Proceedings
Defendant argues that “[i]f, and only if, the [c]ourt finds the CBP reliquidation was valid, then we submit that the case has not been decided administratively.” DMSJ at 31. Defendant appears to contend that because Orleans Furniture’s protest concerned the scope of the relevant AD order, Customs should have referred the matter to Commerce for a scope determination; because it did not, the issue remains unresolved, “any action (or non-action) by CBP on the protest was an ultra vires determination,” and the protest could not have been deemed denied. Id. at 31-34; see also id. at 33 (“There cannot be a deemed denial of an accelerated disposition for an [1329]*1329issue CBP had no legal right to determine.”). Plaintiff contends the administrative proceedings are complete. Pl.’s Resp. at 15-18.
In antidumping administrative proceedings, scope issues may be resolved in one of two ways. First, an “interested party” may seek a ruling from Commerce clarifying “whether a particular product is within the scope of an [antidumping duty] order.” 19 C.F.R. § 351.225(c)(1); Sandvik Steel Co. v. United States, 164 F.3d 596, 599-600 (Fed. Cir. 1998) (reviewing Commerce’s “detailed scope determination procedures”).35 Such scope rulings are subject to judicial review by this court. See 19 U.S.C. § 1516a(a)(2)(B)(vi). Alternatively, when the scope of an order is clear, an importer may protest Customs’ determination that a product is within the scope of the order pursuant to 19 U.S.C. § 1514(a)(2), and subsequently challenge any protest denial before this court. See Xerox Corp. v. United States, 289 F.3d 792, 794-95 (Fed. Cir. 2002) (holding that an importer need not have sought a scope ruling from Commerce when “the scope of the order [was] not in question” because the importer had asserted that the subject merchandise was “facially outside the scope of the [order]”; distinguishing Sand-vik Steel in which “importers should have sought scope rulings from Commerce ... because ... it was unclear whether the goods at issue were within the scope of [the] orders”); cf. Sunpreme Inc. v. United States, 40 CIT -, -, 145 F.Supp.3d 1271, 1285 (2016) (CBP “acts beyond its authority” when it “attempts to determine whether a product falls within the scope based upon factual information that the scope language does not explicitly call on CBP to consider.”).
Defendant contends that Customs should have obtained a scope ruling from Commerce because it was unclear “whether ... the items were within the scope of the [AD] order.” See DMSJ at 32. Defendant asserts that, “[i]n the protest, [Orleans Furniture] reminded CBP that the [subject] merchandise ... [constituted] posts and not finished bedroom furniture.” Id.; see also Def.’s Reply at 9 (the importer’s protest “put CBP on notice that [the importer] was contesting the fact that the merchandise ... was not covered by the [AD order]”).36
Here, Orleans Furniture timely protested Customs’ reliquidation and therein requested accelerated disposition. See PSOF ¶ 37; Def.’s Resp. to PSOF. Pursuant to § 1515(b), “a protest which has not been allowed or denied in whole or in part within thirty days following the date of mailing by certified or registered mail of a request for accelerated disposition shall be deemed denied.” 19 U.S.C. § 1515(b); see also 19 [1330]*1330C.F.R. § 174.22(d) (governing deemed denials of protests for which accelerated disposition had been sought). The Parties agree that Orleans Furniture requested accelerated disposition; absent evidence that Customs otherwise “allowed or denied [the protest] in whole or in part,” there is no genuine dispute that Orleans Furniture’s protest was deemed denied and the administrative proceedings are, thus, complete. See PSOF ¶ 38; Def.’s Resp. to PSOF ¶ 38; Anderson, 477 U.S. at 249, 106 S.Ct. 2505. Whether Customs properly-applied the terms of the scope of the AD order to include Orleans Furniture’s merchandise is no longer reviewable.-That decision was made in the context of the reliquidation. Defendant’s time to challenge that decision, through protest and, if necessary, challenge to the denial of the protest, has passed. As discussed above, supra Discussion Sect. I.A.b.ii, issues that were subsumed in the liquidation/reliquidation are final and cannot be raised as a defense in this collection action.
Based on the foregoing, the reliquidation and associated charges are “final and conclusive.” Therefore, Defendant is liable to the Plaintiff for the $50,000 face value of the bond.
IV. Plaintiffs Entitlement to Interest
Plaintiff seeks statutory interest pursuant to 19 U.S.C. § 580 and equitable interest. See PMSJ at 13-14; Compl.¶ 1. According to Plaintiff, statutory and equitable interest should be calculated on the face value of the bond because the total amount of antidumping duties, pre-liquidation interest, and delinquency interest due exceeds the bond’s value. See Pl.’s Reply at 21. Plaintiff asserts, however, that the issue of equitable interest should be held in abeyance pending the Federal Circuit’s determination whether the government is entitled to equitable and statutory interest. See PMSJ at 13-14 (citing AHAC (09-403), 100 F.Supp.3d at 1373 (declining to award equitable interest in light of the government’s entitlement to § 580 interest), appeal docketed, Nos. 16-1088, 16-1090 (Fed. Cir. Oct. 20, 2015);37 United States v. Am. Home Assur. Co. (“AHAC (10-185)”), 39 CIT -, -, 102 F.Supp.3d 1376, 1380 (2015) (same), appeal docketed, No. 16-1258 (Fed. Cir. Nov. 30, 2015));38 Pl.’s Reply at 20. Defendant does not dispute Plaintiffs entitlement to statutory interest. See Def.’s Resp. at 17-20. Defendant contends that Plaintiff is not entitled to equitable interest, and the court should adjust any award of statutory interest by a “negative ‘equitable prejudgment interest’ ” amount. Id. at 19. Defendant further contends that interest should be calculated on the amount of antidumping duties due,39 not the $50,000 face value of the bond, and that interest began to accrue on December 15, 2014. Id. at 18, 20.40
A. Statutory Interest
The government is entitled to collect statutory interest “at the rate of [six] per centum a year,” 19 U.S.C. § 580, on all “bonds securing the payment of antidump-[1331]*1331ing duties when the government sues for payment under those bonds,” AHAC (Fed. Civ.), 789 F.3d at 1325. Interest is calculated “from the time when said bonds became due.” 19 U.S.C. § 580.
Here, the “bonds became due” on April 27, 2010, the date Customs issued to Defendant the 612 Report. See 612 Report (titled “Formal Demand on Surety for Payment of Delinquent Amounts Due”); 19 U.S.C. § 580. Thus, interest began to accrue on that date, and runs until the court issues judgment on liability. See AHAC (10-185), 102 F.Supp.3d at 1379 (§ 580 interest accrues from the date Customs first demanded payment until the date of the court’s judgment on liability).
Defendant’s contention that interest should instead accrue from December 15, 2014, the date on which Customs sent it a demand letter, and not the earlier date on which Customs issued the 612 Report because the 612 Report noted there was an open protest, is unavailing. A surety’s “payment obligation runs independently of the protest proceedings.” United States v. Ataka America, Inc., 17 CIT 598, 607, 826 F.Supp. 495, 503 (1993) (regardless of whether “protest proceedings are pending,” a surety “owes the duties and in the absence of other defenses, breaches its bond if it does not pay in accordance with its obligation”). Moreover, as noted above, supra note 17, the 612 Report recognized that the deadline for ruling on the protest had passed. See 612 Report.
Defendant’s contention that interest accrues on the amount of antidumping duties owed, and not the face value of the bond, also lacks merit. Pursuant to 19 U.S.C. § 1677g,41 the government is entitled to collect interest on underpayment of amounts deposited on merchandise entered on or after the date on which an antidumping order issues. Thus, § 1677g interest accrues on the difference between the cash deposit paid by Orleans Furniture42 and the liquidated amount.43 The government is also entitled to delinquency interest pursuant to 19 U.S.C. § 1505(d).44 Because the sum total of the principal, § 1677g interest, and § 1505(d) interest exceeds the face value of the bond, see PSOF ¶ 43; Def.’s Resp. to PSOF; 612 Report, § 580 interest is calculated on the face value of the bond. Interest therefore ran on a liability amount of $50,000 from April 27, 2010 to the judgment date at a rate of six percent per annum.
B. Equitable Interest
Having found that the government is entitled to § 580 interest, as Plaintiff has proposed, the court will defer its consideration of the appropriateness of an award of equitable prejudgment interest, pending the Federal Circuit’s determination whether the government is entitled to both. See [1332]*1332supra Discussion Sect. IV. Deferring consideration of this issue will not expose Defendant to additional interest because interest stops accruing on the date the court enters judgment on liability. Cf. AHAC (10-185), 102 F.Supp.3d at 1379 n.2 (rejecting the government’s argument that interest accrues until the court enters judgment following remand from the Federal Circuit).45 And, as discussed below, the court finds it appropriate to enter partial summary judgment pursuant to US-CIT Rule 54(b).
C. Partial Summary Judgment
The court has determined that Plaintiff is entitled to recover $50,000 in unpaid antidumping duties and interest, which is the face value of the bond that GAIC issued, plus statutory prejudgment interest. Nevertheless, Plaintiff proposes that the court defers reaching the issue of its entitlement to equitable prejudgment interest. See PMSJ at 13-14. Deferring the equitable interest issue without entering judgment as to liability, however, could prejudice the Defendant by permitting additional interest to accrue while the Federal Circuit resolves the issue in the two cases pending before it. Accordingly, the court will treat Plaintiffs request for equitable prejudgment interest as a claim for relief that is separate from its claim for the value of the bond and statutory interest, thereby enabling the court to enter partial summary judgment pursuant to USCIT Rule 54(b).
As previously stated, Rule 54(b) provides that “[w]hen an action presents more than one claim for relief ..., the court may direct entry of a final judgment as to one or more but fewer than all claims ... only if the court expressly determines that there is no just reason for delay.” USCIT Rule 54(b). “Rule 54(b) requires finality—‘an ultimate disposition of an individual claim entered in the course of a multiple claims action.’ ” United States v. Horizon Prods. Int’l, Inc., 39 CIT -, -, 91 F.Supp.3d 1339, 1340 (2015) (quoting Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 436, 76 S.Ct. 895, 100 L.Ed. 1297 (1956)). To determine whether there is no just reason for delay, the court examines whether the concern for avoiding piecemeal litigation is outweighed by considerations favoring immediate entry of judgment. See id. (citing Timken v. Regan, 5 CIT 4, 6, 1983 WL 4993 (1983)).
Here, the United States seeks to recover the face value of the bond, statutory prejudgment interest pursuant to 19 U.S.C. § 580, and equitable prejudgment interest. The court has determined that Plaintiff is entitled to the face value of the bond and statutory interest. There is nothing more for the court to decide in connection with those claims; thus, the court has reached an “ultimate disposition” as to those claims. Moreover, resolution of those claims do not bear on the court’s resolution of Plaintiffs claim to equitable prejudgment interest.
The entry of a Rule 54(b) judgment on Defendant’s liability and an award of statutory interest while deferring the issue of equitable interest serves the interests of both parties and the administration of justice because it tolls the accrual of prejudgment interest and prevents an extraneous appeal of an issue the Federal Circuit is already deciding. To the extent partial summary judgment gives rise to piecemeal litigation, i.e., an appeal of these decided [1333]*1333issues while the issue of equitable interest remains unresolved, that concern is outweighed by the interest in tolling the accrual of prejudgment interest, which favors the immediate entry of judgment. See Horizon Prods. Int’l, 91 F.Supp.3d at 1340-41 (fixing the amount of prejudgment interest favors the entry of final judgment). Accordingly, the court finds that there is no just reason for delay and will enter partial summary judgment pursuant to USCIT Rule 54(b).46
Conclusion
For the reasons discussed above, the court will grant Plaintiffs motion for summary judgment, in part, and deny Defendant’s motion for summary judgment. Judgment will be entered accordingly.
Attachment
ERRATA
United States v. Great American Insurance Company of New York, Court No. 15-00047, Confidential Slip Op. 17-61, dated May 18, 2017.
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May 31, 2017
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Cite This Page — Counsel Stack
229 F. Supp. 3d 1306, 2017 Ct. Intl. Trade LEXIS 64, 2017 WL 2378022, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-great-american-insurance-co-of-new-york-cit-2017.