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HQ 229222

March 8, 2002


Port Director of Customs
Attn: Mr. David A. Hostetler
Assistant Port Director, Trade Compliance 200 Granby Street, Suit 839
Norfolk, VA 23510

Dear Sir:

RE: Application for Further Review of Protest No. 1401-01100084, Interest, 19 U.S.C. 1505(c), Retroactive Effect on Legislation, Tariff Suspension and Trade Act of 2000.

This is in response to your memorandum dated July 2, 2001, which you forwarded an application for further review of the above-referenced protest, filed by counsel on behalf of Orlando Food Corp.


On November 9, 2000, pursuant to section 1408 of the Tariff Suspension and Trade Act of 2000, (Act of November 9, 2000, Pub.L. 106-476, 114 Stat 2101, 2148), Congress amended the classification of tomato sauce preparation being imported from the European Union. The items were being reclassified from HTSUS subheading 2002.10.00 to HTSUS subheading 2103.90.60.

Approximately 90 entries from different importers were re-classified as a result of this Act, whereas another set of entries were re-classified as a result of judicial action brought by Orlando Foods to the Court of International Trade (see, Orlando Food Corp. v. U.S. 21 C.I.T. 187(1997), 140 F.3d 1437( Fed.Cir 1998).

The subject entry no. 788-XXX306-4 (entry date July 14, 1989) was designated for re-liquidation under section 1408(d) of the Tariff Suspension and Trade Act (hereinafter “the Act”). In section 1408(a) of the Act, the law stated that Customs “shall, no later than 180 days after the receipt of the request described in subsection (b), liquidate or re-liquidate...each entrywhich at the time of the original liquidation was classified under subheading 2002.100.00. In section 1408(b), the law stated that the request to re-liquidate could be made only if the importer’s request was filed to Customs within 90 days from enactment of the Act and the request contained all the information necessary to enable Customs to locate and confirm that the entry fell within the scope of the Act. Customs was to pay any amounts due by the United States pursuant to the re-liquidation of the entries involved “not later than 180 days after the date of liquidation or reliquidation.

At the time of entry, Orlando Food paid $95,000.00 in duties. On November 20, 2000, Orlando filed its duty refund claim. On December 15, 2000 the port received the reliquidation instructions from Headquarters specifying how to process the refund requests from affected importers. Headquarters instructed the field to liquidate or re-liquidate the entries listed and to reclassify them accordingly. There was no mention as to the calculation of interest in the refund. In response to the refund claim and as required by the Act, the port evaluated the entry, determined that it fell within the parameters of the law and proceeded to re-liquidate the entry. Orlando Food’s entry was re-liquidated with duties assessed in the amount of $7,125.00. Customs refunded $87,875.00 to Orlando Food Corp. On May 30, 2001, Orlando Food Corp. filed this protest alleging that Customs had failed to pay interest on the refund. Orlando Foods argued that, in accordance to the Mod Act, Customs is required to pay interest from the date the duties were deposited to the date of re-liquidation in accordance to 19 U.S.C. 1505(c).

ISSUE: Whether Customs was required to pay interest under 1505(c) based upon a reliquidation instruction from an Act of Congress, namely the Tariff Suspension and Trade Act of 2000?


Initially we hold that the protest was timely filed, within 90 days from the date of re-liquidation of the subject entry. The date of re-liquidation was March 2, 2001 and the protest was timely filed on May 30, 2001. The protest involves a protestable issue under 19 U.S.C. 1514(a)(5), which pertains to the liquidation or reliquidation of an entry, or reconciliation as to the issues contained therein, or any modification thereof. This request for further review is also warranted under 19 U.S.C. 174.24 and 174.25.

The Tariff Suspension and Trade Act of 2000 was signed on November 9, 2000. The Act specifically instructed Customs to re-classify various commodities including a certain tomato sauce preparation subject of this entry. Since there was no specific instruction as to the assessment of interest, entry no. 788-XXX306-4 was re-liquidated by Customs and duties were refunded without the calculation of interest due. This action was timely protested by Orlando Foods.

We proceed to deny this protest. Chapter One of Subtitle B of the Tariff Suspension and Trade Act of 2000 provided explicit instructions for Customs to liquidate and reliquidate several categories of goods. It included instructions concerning the time frames and terms for repayment of duties to the affected importers. In some sections, such as 1402, 1403, 1412 and 1425, it specifically provided for the calculation and issuance of interest in the affected refunds. However, for section 1408, there is no specific instruction on the refund of interests. In view of that the Act’s instructions excludes any provision for interest payment for section 1408 (among others), the U.S. Customs Service is impeded by law to issue any interest payment for any entry liquidated under this section. The U.S. Customs Service is required and committed in following statutory obligations with exact precision.


Protest claiming the payment of interest is hereby denied.

Sixty days from the date of this decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act. And other means of public distribution.


John Durant, Director
Commercial Rulings Division

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