ENT-1-03/LIQ-1-CO:R:C:E 225614 PH
District Director
U.S. Customs Service
St. Albans, Vermont 05478
RE: Protest No. 0201-94-100229; Interest; Effective Date;
Retroactivity; North American Free Trade Agreement (NAFTA)
Implementation Act; Customs Modernization Act; 19 U.S.C.
1505(c); 19 U.S.C. 1514
Dear Sir:
The above-referenced protest was forwarded to this office for
further review. We have considered the evidence provided, and
the points raised, by your office and the protestant. Our
decision follows.
FACTS:
According to the file, between October 23, 1990, and December 8,
1992, the eighty-six (86) entries under consideration were filed.
The entries were for certain tissue paper. According to the
Stipulated Judgement on Agreed Statement of Facts in the Court of
International Trade (CIT) action involving the entries, the
merchandise was classified by Customs upon liquidation under
subheading 4804.39.60, HTSUS. The entries were liquidated
between January 25, 1991, and March 12, 1993. Estimated duties
were, according to the protest, deposited at the time of entry.
According to the Stipulated Judgement in the CIT action involving
this matter, the merchandise is classifiable under subheading
4804.39.40, HTSUS, free of duty. The Stipulated Judgement,
signed January 31, 1994, ordered "[a]ny refunds payable by reason
of this judgement ... to be paid with any interest provided for
by law." It was ordered that final judgement be entered and that
the appropriate Customs officials reliquidate the entries
accordingly.
According to the protest, the entries were reliquidated on March
4, 1994. The protestant filed the protest under consideration
with Customs on May 26, 1994. In the protest, the protestant
contends that the entries should be reliquidated with the payment
of interest calculated from the date of entry (the date of
deposit of estimated duties, according to the protest) to the
date of reliquidation, on the basis of the amendment to 19 U.S.C.
1505(c), effected by section 642(a), Title VI, Public Law 103-182
(the North American Free Trade Agreement Implementation Act; 107
Stat. 2557, 2205). Further review was requested and granted.
ISSUE:
May the protest in this case be granted?
LAW AND ANALYSIS:
Initially, we note that the protest, with application for further
review, was timely filed under the statutory and regulatory
provisions for protests (see 19 U.S.C. 1514 and 19 CFR Part 174).
We note that the issue protested is a protestable issue (19
U.S.C. 1514(a)(3), (5); see also Syva Co. v. United States, 12
CIT 199, 681 F. Supp. 885 (1988)).
At issue in this protest is whether the amendment to 19 U.S.C.
1505(c) effected by section 642(a), Title VI, Public Law 103-182,
is effective to entries filed before the effective date of that
law but liquidated after the effective date of the law. As
stated in the FACTS portion of this ruling, the entries under
consideration were filed between October 23, 1990, and December
8, 1992. The effective date of Title VI of Public Law 103-182 is
the date of enactment (December 8, 1993). The entries under
consideration were reliquidated on March 4, 1994.
Customs has thoroughly considered the applicability of the
amendment to 19 U.S.C. 1505(c) effected by section 642(a), Title
VI, Public Law 103-182. Customs position is that the amendment
applies only to entries filed on or after December 8, 1993, and
not to entries filed before December 8, 1993, and liquidated on
or after that date. Enclosed is a copy of our ruling HQ 225576
so holding. This ruling is incorporated (by reference) into this
protest decision and made a part of it. A copy of ruling HQ
225576 should be mailed with the Customs Form 19 to the
protestant, as provided below. On the basis of ruling HQ 225576,
the protest under consideration must be DENIED.
This ruling addresses only the effective date of the amendment to
19 U.S.C. 1505(c) effected by section 642(a), Title VI, Public
Law 103-182, and not the substantive application of that
provision.
HOLDING:
The protest is DENIED because the amendment to 19 U.S.C. 1505(c)
effected by section 642(a), Title VI, Public Law 103-182 (107
Stat. 2057, 2205), applies only to entries filed on or after
December 8, 1993, and not to entries filed before December 8,
1993, and liquidated on or after that date (see ruling HQ 225576,
copy enclosed).
In accordance with Section 3A(11)(b) of Customs Directive 099
3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed by your office, with
the Customs Form 19, to the protestant no later than 60 days from
the date of this letter. Any reliquidation of the entry in
accordance with the decision must be accomplished prior to
mailing of the decision. Sixty days from the date of the
decision the Office of Regulations and Rulings will take steps to
make the decision available to Customs personnel via the Customs
Rulings Module in ACS and the public via the Diskette
Subscription Service, Freedom of Information Act, and other
public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division
Enclosure