HQ 226337 - Internal Advice; Protest 2704-88-002186; Protestable decisions; One protest per entry; 19 CFR 174.24, 174.25, 174.26; 19 U.S.C. 1514 - United States International Trade Commision Rulings

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HQ 226337

May 1, 1996

PRO-2-01/PRO-2-02/PRO-2-05-RR:IT:EC 226337 PH

CATEGORY: PROTEST

John R. deRomoet, Esq.
Assistant Chief Counsel
U.S. Customs Service
6026 Lakeside Boulevard
Indianapolis, Indiana 46278

RE: Internal Advice; Protest 2704-88-002186; Protestable decisions; One protest per entry; 19 CFR 174.24, 174.25, 174.26; 19 U.S.C. 1514

Dear Sir:

This is in response to your memorandum of July 24, 1995 (File: ACC ATK 95-1240). With your memorandum you enclosed the original of a Customs Form (CF) 19, signed May 12, 1995, and, according to your memorandum, received in your office on or about May 17, 1995. The CF 19 purports to be a "protest ... filed with the National Finance Center regarding its refusal to issue interest payments due pursuant to an approved protest." Further review is requested on the CF 19. You state that you are forwarding the matter to this office "... since box number 7 [requesting further review] has been checked ... [and] the regulations do not clearly indicate which office should decide the protest."

We concur that the Customs Regulations do not clearly indicate which office should decide the protest, just as they do not clearly indicate the office in the Customs Service with which the protest is to be filed. However, based on Norfolk and Western Railway Co. v. United States, 843 F. Supp. 728 (CIT 1994); 869 F. Supp. 974 (CIT 1994); 62 F. 3d 1395 (Fed. Cir. 1995), it is our opinion that the office with which the protest should have been filed in this matter is the office which made the decisions which are protested (i.e., according to the CF 19, the decisions protested are two letters from the Director, National Finance Center). Based on our understanding of the Norfolk and Western Railway Co. case and the Customs Regulations pertaining to protests, we believe that the same Customs officer (i.e., the Director, National Finance Center) is required to act on the protest. That is, under 19 CFR 174.29, the port director (formerly district director) is required to allow or deny in whole or in part a protest filed under 19 U.S.C. 1514. Since, under part 174 of the Customs Regulations, the port director (formerly district director) whose decision is protested is the Customs officer with whom a protest is required to be filed (19 CFR 174.12(d)), we interpret these provisions to require the Customs office with which a protest is properly filed to act on the protest.

Accordingly, we believe that the above officer (i.e., the Director, National Finance Center) is the officer in Customs who is required to act on the protest. Since the CF 19 is not checked to indicate that the application for further review has been approved (we note that the protest does not appear to have been processed in any way), we are treating your letter as an internal advice request under 19 CFR 177.11. We are returning the original CF 19 for proper processing by the appropriate office, as indicated above.

Our ruling follows.

FACTS:

According to Customs records, on June 29, 1984, the protestant in this matter imported certain merchandise under two consumption entries. Countervailing duties totaling $160,204.39 were deposited on July 23, 1984, for the entries. Liquidation of the entries was suspended and notices of suspension of liquidation were issued. On April 22, 1988, both entries were liquidated and both entries were voluntarily reliquidated on May 6, 1988. According to Customs records, the liquidated amount of countervailing duties was zero and the net liquidated refund was stated to be a total of $147,014.33 (the reason for the discrepancy between deposited and liquidated countervailing duties is that regular duties were advanced in one of the entries).

On May 31, 1988, the importer filed a protest (Protest 2704-88-002186) under 19 U.S.C. 1514 with the Customs district where the entries were liquidated. The protest was stated to be "against [Customs] failure to calculate and refund interest on the countervailing duty deposit refunded upon liquidation." According to the copy of the CF 19 in the file for this protest, the protest was approved on June 15, 1988.

According to the information available to this office, the next action in this matter was that the protestant "contacted" the National Finance Center about the matter on September 15, 1994. In the file there is an April 11, 1995, letter (File: ACC: ATK 95-0733) signed by the Director, National Finance Center in which that officer states that "Customs denies the claim [described as the claim presented on behalf of the protestant for the payment of interest allegedly due in connection with an approved protest (Protest No. 2704-88-002186)] because it was presented to Customs more than six years after it accrued." This letter cited 4 CFR 31.5, as supporting the denial of the claim. The letter suggested that the Office of Assistant Chief Counsel, Indianapolis, be contacted if there were any questions or comments.

Also in the file is a May 3, 1995, letter (File: ACC: ATK 95-0733) stated to be in response to an April 21, 1995, letter from the representative of the protestant to the Office of Assistant Chief Counsel, Indianapolis. In this latter letter it was stated that "[a]fter reviewing the matter [the contention that the protestant's claim was timely and is not governed by any statute of limitations], ... Customs disagrees [with the protestant's contention] and reaffirms its denial of [the protestant's] claim on the ground that it was untimely."

The importer, through its representative, filed a CF 19 purporting to protest the letters of April 11 and May 3, 1995, letters described as "... refusing to pay [the [protestant] interest on refunds of countervailing duty deposits." The arguments made by the protestant were:

The decisions of April 11 and May 3, 1995 are clearly decisions of the Customs Service relating to liquidation or reliquidation of an entry, including reconciliations of the issues contained therein, and also concern charges or exactions in the form of duty deposits and the handling thereof.

The claim involved in this situation is the failure to pay interest in connection with the liquidation of the two entries involved [and] [t]his claim was clearly received by ... Customs ... within six years of the date the claim arose [referring to 4 CFR 31.5 and 31 U.S.C. 3702(b), requiring a claim against the Government to be received by the department or agency involved within six years from the date the claim accrued].

... The approved protest [in this matter] ... required no further action by the importer and established the obligation of the Customs Service to make payment with regard to the approved claim. 4 CFR 31.5 imposes no time limitations on the resolution of a timely filed claim.

ISSUE:

Does the application for further review in the purported "protest" qualify for such further review and, if so, should the protest be granted on the basis of such further review? LAW AND ANALYSIS:

Under 19 U.S.C. 1514, (with certain exceptions not applicable in this matter) certain listed decisions (including the legality of all orders and findings entering into the same) of the Customs Service are final and conclusive on all persons unless a protest is filed in accordance with section 1514, 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 in accordance with chapter 169 of Title 28, United States Code. The decisions (listed in section 1514(a); also listed in 19 CFR 174.11 as "[m]atters subject to protest") are:

(1) the appraised value of merchandise;

(2) the classification and rate and amount of duties chargeable;

(3) all charges or exactions of whatever character within the jurisdiction of the Secretary of the Treasury;

(4) the exclusion of merchandise from entry or delivery or a demand for redelivery to customs custody under any provision of the customs laws, except a determination appealable under [19 U.S.C. 1337];

(5) the liquidation or reliquidation of an entry, or reconciliation as to the issues contained therein, or any modification thereof;

(6) the refusal to pay a claim for drawback; or

(7) the refusal to reliquidate an entry under [19 U.S.C.

The procedures for filing a protest of one of the above decisions are provided in 19 U.S.C. 1514(c). Section 1514(c)(1) provides that only one protest may be filed for each entry of merchandise (with certain exceptions inapplicable in this matter). Section 1514(c)(3) provides that a protest of a decision, order, or finding described in section 1514(a) shall be filed with Customs within 90 days after but not before the notice of liquidation or reliquidation or the date of the decision as to which protest is made (if the requirement for filing within 90 days before the notice of liquidation or reliquidation is inapplicable).

Under 19 U.S.C. 1515, "[u]pon the request of the protesting party ... a protest may be subject to further review by another appropriate customs officer, under the circumstances and in the form and manner that may be prescribed ... in regulations".

The Customs Regulations pertaining to protests, issued under the above statutes, are found in 19 CFR Part 174. Under 19 CFR 174.24, further review (as provided for in 19 U.S.C. 1515) shall be accorded a party when the decision against which the protest was filed, among other things, is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts. Under 19 CFR 174.26(b), a protest with an application for further review shall be reviewed (as pertinent to the grounds under which further review was requested in this matter) by the Commissioner of Customs or his designee if the protest and application for further review raise an issue involving questions which have not been the subject of a Customs ruling or court decision.

In this matter the protestant purports to "protest" the "decisions [of the Director, National Finance Center] of April 11, 1995 and May 3, 1995 refusing to pay to [the protestant] interest on refunds of countervailing duty deposits." Further review is requested on the basis of the allegation that the purported "protest" involves questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts.

Thus, the purported "protest" contends that a debt which arose as a result of the approval of Protest No. 2704-88-002186 is unsatisfied. This is not one of the decisions listed in 19 U.S.C. 1514(a)(1) through (7) (or in 19 CFR 174.11(a) through (g)). Accordingly, the decisions purported to be "protested" are not protestable under 19 U.S.C. 1514. Furthermore, even if the "protested" decisions were protestable under section 1514, we note that "[i]t is accepted that government officials are entitled to the benefit of a presumption that their duties are performed in the manner required by law" (Star Sales & Distributing Corp. v. United States, 10 CIT 709, 710, 663 F. Supp. 1127 (1986), and cases cited therein). Thus, Customs is entitled to the presumption that interest was paid on the refunds of the countervailing duty deposits, pursuant to the approval of Protest No. 2704-88-002186. There is no evidence in the file to rebut this presumption. Finally, we note also that the decisions purportedly "protested" relate to the same issues and entries as the issues and entries protested in in Protest No. 2704-88-002186 (i.e., that protest was "against [Customs] failure to calculate and refund interest on the countervailing duty deposit refunded upon liquidation" (see above)). Under 19 U.S.C. 1514(c)(1), only one protest may be filed for each entry of merchandise (with certain exceptions inapplicable in this matter). Therefore, the purported "protest" is invalid on this ground, as well (see, Russ Togs, Inc. v. United States, 79 Cust. Ct. 119, C.D. 4722 (1977); and Webcor Electronics v. United States, 79 Cust. Ct. 137, C.D. 4725 (1977); American Bosch, Div. Of AMBAC Ind., Inc. v. United States, 82 Cust. Ct. 67, C.D. 4789 (1979) ("... only the first protest filed with respect to an entry of merchandise is valid under [the provision under which only one protest may be filed for each entry]" (82 Cust. Ct. at 68)).

Thus, further review should be denied in this case (because the decisions purportedly "protested" are not protestable under 19 U.S.C. 1514 and the applicable Customs Regulations and because the criterion alleged to be met for further review has not, in fact, been met (see 19 CFR 174.24, 174.25, and 174.26)). On the same basis (we note also that even if the decisions purportedly "protested" were protestable and the restriction against more than one protest per entry were not applicable in this matter, no evidence has been presented to rebut the presumption that government officials perform their duties in the manner required by law (see Star Sales, supra, as discussed above) the "protest" should also be denied.

(This ruling addresses only the protestability under 19 U.S.C. 1514 of the purported "protest". This ruling does not address the applicability of 31 U.S.C. 3702 and 4 CFR 31.5 to the matter. We defer to your office in this regard.)

HOLDING:

The application for further review in the purported "protest" does not qualify for such further review because the decisions purportedly "protested" are not protestable under 19 U.S.C. 1514 and the applicable Customs Regulations and because the question alleged not to have been ruled upon by the Commissioner of Customs or his designee or by the Customs courts has been ruled upon by the Courts and is specifically provided for in the pertinent statute. The "protest" should be DENIED on the same basis (and even if the "protest" were not jurisdictionally deficient, the "protest would fail because of the presumption that government officials perform their duties in the manner required by law and the absence of any evidence rebutting this presumption).

The Office of Regulations and Rulings will take steps to make this 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 60 days from the date of this decision.

Sincerely,

Director, International

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