PRO-2-01/PRO-2-02/PRO-2-05-RR:IT:EC 226337 PH
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.
1520(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
Trade Compliance Division
Enclosure