HQ 0223679 - Protest #2809-91-100686 concerning duty refund under section 483(b)(1)(B) of the Customs and Trade Act of 1990; Tariff Schedules of the United States (TSUS) item 676.15; digital processing unit; San Francisco Customs district Information Notice 91-03. - United States International Trade Commision Rulings

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HQ 223679

May 26, 1992

LIQ-10 CO:R:C:E 223679 TLS

CATEGORY: ENTRY

District Director
U.S. Customs Service
555 Battery Street
P.0. Box 2450
San Francisco, California 94126

RE: Protest #2809-91-100686 concerning duty refund under section 483(b)(1)(B) of the Customs and Trade Act of 1990; Tariff Schedules of the United States (TSUS) item 676.15; digital processing unit; San Francisco Customs district Information Notice 91-03.

Dear Sir:

The above-referenced protest has been forwarded to this office for further review. We have considered the points raised by the protestant and your office. Our decision follows.

FACTS:

Your office sent out an Information Notice (#91-03) dated October 11, 1990, which expired February 17, 1991. The notice was sent to all brokers who had entered through your district digital processing units that were subject to section 483(b)(1)(B) of the Customs and Trade Act of 1990. Act of Aug. 20, 1990, 104 Stat. 649, Pub. L. No. 101-382 (1990 Trade Act). That section "provides for the liquidation or reliquidation of entries of digital processing units without regard to the normal timeliness constraints of 19 U.S.C. 1514 or any other provision of law, provided that entry was made after January 16, 1986 and prior to July 2, 1987, and that the entries contain digital processing units that have been entered under items 676.15 or 676.54 of TSUS, and if classified in 676.15 would not have been subject to temporary duties under 945.83 or 945.84 of TSUS."

In addition to the requirements noted above, the claimant was required to request a reliquidation in writing with the appropriate Customs officer within 180 days after the enactment of the 1990 Trade Act. This meant that the request had to be filed after August 20, 1990 and on or before February 17, 1991. The claimant did not file a timely request under the aforementioned statute, a fact that it does not dispute. The protestant contends that since it did not receive a Notice of Action on the subject entries as an importer, but as a consignee, it was misled by Customs as to its rights in this transaction. The importer has timely filed this protest to present its claim after having missed the statutory deadline for reliquidation.

ISSUE:

Whether the Customs Service has the authority to extend the 180-day filing period provided for under section 483(b)(1)(B) of the 1990 Customs and Trade Act if it misled the protestant.

Whether either the Customs Information Notice 91-03 or the consignee's copy of the Notice of Action on the subject entry can be said to have in fact misled the protestant.

LAW AND ANALYSIS:

Section 500(e) of the Tariff Act of 1930 provides for Customs giving notice of classification, appraisement, and liquidation procedures. In the present case, the importer was notified of its right to request reliquidation on the subject entry to receive duty-free treatment. The importer acknowledges such. The notice states that the reliquidation will be done upon "request"; reliquidation is not required nor is it done as an automatic right. Hence, whether a particular entry is reliquidated under section 483(b)(1)(B) is entirely at the importer's own discretion.

The protestant claims that its right to reliquidate under the 1990 Trade Act were somehow compromised when Customs sent a consignee's copy of the Notice of Action on the subject entry. Therefore, it is alleged, the protestant did not have cause to "recognize" that it could have made a timely request for reliquidation of the entry under section 483(b). We find no merit in this claim. It appears that the protestant wishes us to find Customs at fault for not giving it reason to believe that the protestant is the importer of record on this entry. Whether the protestant received a consignee's copy of the Notice of Action or the importer of record copy has no bearing on the fact that it was notified of its right to reliquidate the entry. Customs is not responsible for the importer's recognition of its status as the importer of record on the entry. The only obligation Customs had with regard to the protestant's right to reliquidate under section 483(b) was to notify it of such. That was clearly done in this case. Therefore, we find that the protestant has no claim to reliquidate the subject entry because it has not timely filed a request to do so.

Customs does not have the right to extend the 180-day filing period under section 483, even if the protestant had been misled by the Information Notice or the Notice of Action. The special statutory provision does not provide for extension of the filing period for any reason. Where Customs has been allowed to extend the filing period under statute, the authority has been expressly provided for. See, e.g., Tariff Act of 1930 504, 19 U.S.C. 1504 (1980). Furthermore, court cases have decided that Customs cannot exercise jurisdiction over a matter once the statutory deadline has passed, absent express authority to do so. See San Francisco Newspaper Printing Company v. United States, 9 CIT 517, 620 F. Supp. 738 (1985); Marposs Gauges Corp. v. United States, 9 CIT 193 (1985). Therefore, Customs cannot reliquidate the subject entry because the filing deadline for such action has passed without the requisite action being taken by the importer.

HOLDING:

Customs fulfilled its obligation to the protestant when it notified it of its right to reliquidate the subject entry under section 483(b)(1)(B) of the Customs and Trade Act of 1990. Customs is under no obligation to notify the broker of its status as importer of record on the entry. The protestant cannot claim reliquidation of the entry under section 483(b) because it did not file a timely request to do so. Customs does not have the authority to extend the deadline under section 483(b). Accordingly, the protest should be denied in full. A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director

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