CLA-2 OT:RR:CTF:TCM W968131 HkP
Technical Corrections Act of 2004
Port Director
Port of Jacksonville
U.S. Customs and Border Protection
2831 Talleyrand Avenue Jacksonville, FL 32206
RE: Application for Further Review of Protest No. 1803-05-100020; Classification of 13” TV/VCR combinations; Miscellaneous Trade and Technical Corrections Act of 2004
Dear Port Director:
This is our decision regarding the Application for Further Review (“AFR”) of Protest No. 1803-05-100020, timely filed on behalf of Sears, Roebuck and Co.
(Protestant), concerning the applicability of the Miscellaneous Trade and
Technical Corrections Act of 2004 to certain 13 inch television/video cassette recorder (TV/VCR) combinations. We apologize for our delay in responding to you.
FACTS:
According to the information submitted, the merchandise at issue is television sets with built-in VCRs that were designed and marketed in accordance with industry standards as 13 inch TVs. The TV/VCRs were entered between June 9, 1997, and December 5, 1998, under subheading 8528.12.16, HTSUS, as non-high definition reception apparatus for television incorporating video recording or reproducing apparatus, with a video display diagonal exceeding 33.02 cm (13 inches). Between April 24, 1998, and October 15, 1999, U.S. Customs and Border Protection (CBP) liquidated the entries, applying the classifications under which they had been entered. However, CBP consistently
found that industry recognized 13 inch TVs measured a little more than 13 inches when “the maximum straight line dimension across the visible portion of the faceplate used for displaying video” was measured, as mandated by Additional U.S. Note 9 to Chapter 85, HTSUS, (1997/98), and informed Congress of the same.
On June 25, 1999, the Miscellaneous Trade and Technical Corrections Act of 1999 (1999 Act) was enacted and addressed, among other issues, the tariff classification of 13 inch televisions. Specifically, it amended the article descriptions of subheadings in which 13 inch TVs were classified by replacing the phrase “33.02 cm” with “34.29 cm” (13.5 inches). All involved subheadings had free or low rates of duty, which meant that industry recognized 13 inch TVs could benefit from free or low rates of duty. The amendments became effective 15 days after the date of enactment of the Act.
The 1999 Act allowed CBP, upon the written request of the importer, to retroactively reliquidate covered entries within a certain timeframe, even if CBP had already taken a final decision on the entry. However, based on our records, there is no evidence that Protestant requested reliquidation within the timeframe stipulated in the 1999 Act. Protestant sought additional legislative relief, which was granted in the Miscellaneous Trade and Technical Corrections Act of 2004 (2004 Act). The 2004 Act addressed the liquidation or reliquidation of specified entries of 13 inch TVs, including Protestant’s, under heading 8528, HTSUS, subheadings with 34.29 cm article descriptions, as amended by the 1999 Act. The 2004 Act was signed into law on December 3, 2004.
Pursuant to the 2004 Act, on February 11, 2005, Protestant filed with the Port a request for reliquidation of specified entries, which was denied. The instant Protest and AFR were filed on August 8, 2005.
ISSUE:
Whether the TV/VCR entries at issue are entitled to be reliquidated as if they meet the amended article descriptions under the 1999 Act.
LAW AND ANALYSIS:
The request for reliquidation was timely filed within 90 days of the enactment of the 2004 Act. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 1506(b), 118 Stat. 2434, 2534 (2004)). The protest was timely filed within 90 days of the denial of the request for reliquidation. (Id. § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(a)(5) (2004)).
Further Review of Protest No. 4503-07-100004 was properly accorded to protestant pursuant to 19 C.F.R. § 174.24 because Protestant alleges that the decision against which the protest was filed involves a question of law or fact which has not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts. Specifically, Protestant alleges that CBP’s decision to not reliquidate the entries of TVs under the 2004 Act is a matter of first impression.
It is not in dispute that at the times of entry the TV/VCRs were provided for in heading 8528, HTSUS, because they are reception apparatus for television incorporating video recording and reproducing apparatus. It is also not in dispute that the subheading under which they were entered and liquidated, 8528.12.16, HTSUS (1997/98), was correct under the provisions of Additional U.S. Note 9 to Chapter 85, HTSUS (1997/98). The video display diagonal of the TV/VCRs measure greater than 33.02 cm, thus precluding them from classification in subheading 8528.12.12, HTSUS.
The Miscellaneous Trade and Technical Corrections Act of 2004 states, in relevant part:
SEC. 1506. CERTAIN ENTRIES OF 13–INCH TELEVISIONS.
(a) IN GENERAL.—Notwithstanding section 514 of the Tariff
Act of 1930 (19 U.S.C. 1514) or any other provision of law and
subject to the provisions of subsection (b), the United States Customs
Service shall, not later than 180 days after the receipt of
the request described in subsection (b), liquidate or reliquidate
each entry described in subsection (d) containing any merchandise
which, at the time of the original liquidation, was classified under
the following subheadings with respect to which there would have
been no duty or a lesser duty if the amendments made by section
1003 of the Miscellaneous Trade and Technical Corrections Act
of 1999 had applied to such entry or withdrawal:
Subheading 8528.12.12.
….
(b) REQUESTS.—Reliquidation may be made under subsection
(a) with respect to an entry described in subsection (d) only if
a request therefor is filed with the Customs Service within 90
days after the date of the enactment of this Act, and the request
contains sufficient information to enable the Customs Service to
locate the entry or reconstruct the entry if it cannot be located.
(c) PAYMENT OF AMOUNTS OWED.—Any amounts owed by the
United States pursuant to the liquidation or reliquidation of an
entry under subsection (a) shall be paid not later than 180 days
after the date of such liquidation or reliquidation.
(d) AFFECTED ENTRIES.—The entries referred to in subsection
(a), are as follows:
Entry number Date of Entry Date of Liquidation
….
110–15093163 10/05/98 08/20/99
110–15173551 11/02/98 09/17/99
110–17091132 11/07/98 09/24/99
110–17217265 12/05/98 10/15/99
110–63822025 06/09/97
110–75485118 02/12/98 12/28/98
110–75492643 02/12/98 12/28/98
110–75793447 07/07/98 05/21/99
Protestant states that, on its face, the language of subsection 1506(d) of the 2004 Act instructs CBP to reliquidate the listed entries, originally liquidated under the enumerated subheadings in subsection (a). However, Protestant argues that applying the 2004 Act as written would lead to an absurd result. That is, the subheadings that are listed in subsection 1506(a) are not the original classifications under which liquidation took place but are the subheadings, the article descriptions of which were amended by the 1999 Act, under which the reliquidations should take place.
Subsection 1506(a) requires CBP to “liquidate or reliquidate each entry described in subsection (d) containing any merchandise which, at the time of original liquidation, was classified under the following subheadings ….” Subsection (d), in turn, states that “the entries referred to in subsection (a) are as follows: ….” However, none of the entries listed in subsection (d) relevant to this Protest (listed above) were liquidated under any of the HTSUS subheadings listed in subheading (a). We find, therefore, that the statute is unclear on its face.
Because the language of section 1506 of the 2004 Act is not clear, the legislative intent behind the section must be ascertained. The courts have said, with regard to statutory interpretation, that:
The rule that ordinarily the statute itself furnishes the best and safest guide to its interpretation and that the legislature will be presumed to have intended to mean what it has plainly expressed is so well settled that the citation of authorities is unnecessary. It is equally well settled that when results flowing from an apparently plain meaning of a statute are ridiculous, absurd, or manifestly unjust, or will have the effect of rendering some other plain provision of the statute nugatory, it will not be presumed that the lawmaking body so intended, and further inquiry may be had.
United States v. Palm, Fechteler & Co, 4 Ct. Cust. 1, 2; T.D. 33195 (1913), cited with approval in Toy Biz Inc. v United States, 27 Ct. Int’l Trade 11, 24 n.20; 248 F. Supp. 2d 1234, 1246 n.20 (2003). Protestant has suggested that we consider certain evidence external to the 2004 Act to determine the intent of Congress.
The courts have said that they take “[a] holistic view of the relevant provisions – placing them in the proper context within the entire statutory framework”. U.S. Steel Group and Bethlehem Steel Corp. v. United States and AG DER Dillinger Huttenwerke, 225 F.3d 1284, 1289 (Fed. Cir. 2000). They have also stated that they “may resort to external indications of Congressional intent, such as legislative history, only when the language and intrinsic evidence fails to reveal such intent.” Broderick v. 119TCbay, LLC, 2009 U.S. Dist. LEXIS 78269, 12 (W.D. Mich. Sept. 1, 2009). The statutory text, including the Congressional statement of purpose and other statutory provisions within the same regulatory scheme, are considered to be intrinsic evidence. See id. at 11. For example, in Dean v. Byerley, 354 F.3d 540, 548 (6th Cir. 2004), the court consulted the title, preamble and other provisions of the statute to interpret a specific provision.
We note that, unlike other statutes, the entire text of the 2004 Act cannot be analyzed to determine the meaning of section 1506. The 2004 Act consists of miscellaneous provisions and technical corrections that are not meant to be read together, although similar types of provisions may be grouped together. As a result, we can only construe the intent behind section 1506 by considering its provisions and by considering the section of the chapter in which it is located, but not the wider Act.
The title of the chapter in which section 1506 is found offers the first indication of legislative intent. It is entitled “Liquidation or Reliquidation of Certain Entries”. 2004 Act, Title 1, Subtitle B, Chapter 1. Subsection 1506(a) also indicates that “the United States Customs Service shall … liquidate or reliquidate each entry described….” The subsection also reveals the intent to retroactively apply a free or low rate of duty to the entries specified in subsection 1506(d):
Notwithstanding section 514 of the Tariff Act of 1930 (19 U.S.C. 1514) [concerning the finality of CBP decisions] …. the United States Customs Service shall … liquidate or reliquidate each entry ... which, at the time of original liquidation … with respect to which there would have been no duty or a lesser duty if the amendments made by section 1003 of the Miscellaneous Trade and Technical Corrections Act of 1999 had applied ….
Subsection 1506(b) addresses how and when a request for reliquidation should be made and subsection (c) addresses the payment of amounts owed pursuant to reliquidation.
Based on the language of Section 1506 and the title of the chapter in which it is found, we conclude that the legislative intent behind the section was to provide for the liquidation or reliquidation of specified entries of 13 inch televisions using the article descriptions amended by the 1999 Act. Because we are able to determine Congressional intent based on the language of the section, there is no need to rely on extrinsic aids.
If, as provided in subsection 1506(a), each entry described in subsection 1506(d) had already been liquidated under the subheadings listed in subsection (a), section 1506 of the 2004 Act, as it pertains to reliquidation, would be redundant. It would direct reliquidation under the same subheadings and article descriptions that existed prior to the 1999 amendments. Consequently, we find that if section 1506 of the 2004 Act were applied as drafted, the intention of Congress would not be accomplished. Specifically, it would not make the article descriptions amended by the 1999 Act applicable to the specified entries. Accordingly, we find that Protestant is entitled to have the entries specified in the 2004 Act reliquidated under subheading 8525.12.12, HTSUS, as if the amendments made by the 1999 Act were effective at the time of entry.
HOLDING:
Under the provisions of section 1506 of the Miscellaneous Trade and Technical Corrections Act of 2004, Sears Roebuck and Co. entry numbers 110–15093163,110–15173551,110–17091132, 110–17217265,110–63822025 ,110–75485118, 110–75492643, and 110–75793447, are to be reliquidated in subheading 8528.12.12, HTSUS (1999) at the duty rate applicable at that time.
Since reliquidation of the merchandise will result in a lower rate of duty, you are instructed to allow the protest in full. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter.
Sixty days from the date of the decision the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel and to the public on the U.S. Customs and Border Protection Home Page on the
World Wide Web at www.cbp.gov by means of the Freedom of Information Act and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division