HQ 225610 - Protest and Application for Further Review No. 2809-94-100787; Interest Due on Overpayment of Duties; 19 U.S.C. ?1505(c); Customs Modernization Act, Section 642 - United States International Trade Commision Rulings

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HQ 225610

December 1, 1994

LIQ-4-01-CO:R:C:E 225610 CB

CATEGORY: LIQUIDATION

District Director
U.S. Customs Service
33 New Montgomery Street
San Francisco, CA 94105

RE: Protest and Application for Further Review No. 2809-94-100787; Interest Due on Overpayment of Duties; 19 U.S.C. ?1505(c); Customs Modernization Act, Section 642

Dear Sir:

The above-referenced protest and application for further review was forwarded to this office for further review. We have considered the points raised and our decision follows.

FACTS:

According to the protestant, the subject shipment of Japanese roller chain was entered on February 21, 1978. Liquidation, which was suspended pursuant to the Roller Chain, Other than Bicycle, from Japan dumping finding, was effected on July 18, 1980 with the assessment of dumping duties. Protestant filed a protest on September 30, 1980 challenging the dumping duty assessment. Protestant states that the liquidated duties were paid at the time the protest was filed. Protestant states that on April 15, 1994, the subject entry was reliquidated, the dumping duties assessed were canceled, and the previously paid dumping duties were refunded. However, protestant was not paid interest on the refunded dumping duties. The subject protest was filed challenging the Customs Service failure to pay interest on the refunded dumping duties.

Protestant contends that since the reliquidation occurred on April 15, 1994, the new 19 U.S.C. ?1505(c) provision governs Customs obligation to pay interest to protestant. This contention is based on the language of the former 19 U.S.C. ?1520(d), now repealed, and recent judicial decisions which, according to protestant, make clear that the interest provision was intended to apply where a refund of duties was made after 1984, regardless of the date of entry and liquidation. Your office has taken the position that, because the entry was made before October 30, 1984, there is no interest due on the refund.

ISSUE:

Does 19 U.S.C. ?1505(c), as amended by section 642(a) of Title VI of the NAFTA Implementation Act, apply to the subject entry?

LAW AND ANALYSIS:

Initially, we note that the protest, with application for further review, was timely filed under the statutory and regulatory provisions for protests (see 19 U.S.C. ?1514 and 19 CFR Part 174). We note that the issue protested is a protestable issue (19 U.S.C. ?1514(a)(3) and (5); see also Syva Co. v. United States, 12 CIT 199, 681 F. Supp. 885 (1988).

The North American Free Trade Agreement (NAFTA) implementation Act (Pub. L. 103-182; 107 Stat. 2057), was enacted on December 8, 1993. Title VI of the NAFTA Implementation Act, titled Customs Modernization, contains various amendments to the Customs laws and other statutes. Section 642(a) of Title VI of the NAFTA Implementation Act (107 Stat. 2205) amended 19 U.S.C. providing as follows:

(c) Interest.--Interest assessed due to an underpayment of duties, fees, or interest shall accrue, at a rate determined by the Secretary, from the date the importer of record is required to deposit estimated duties, fees, and interest [19 U.S.C. ?1505(a) requires the importer of record to deposit estimated duties and fees at the time of making entry or at such later time as the Secretary may prescribe by regulation] to the date of liquidation or reliquidation of the applicable entry or reconciliation. Interest on excess moneys deposited shall accrue, at a rate determined by the Secretary, from the date the importer of record deposits estimated duties, fees, and interest to the date of liquidation or reliquidation of the applicable entry or reconciliation.

Section 692 of Title VI of the NAFTA Implementation Act (107 Stat. 22250 provides that "[t]his title takes effect on the date of the enactment of this Act."

At issue in this protest is whether the amendment to 19 U.S.C. ?1505(c) effected by section 642(a), Title VI, Pub. L. 103-182, is effective to entries filed before the effective date of that law but reliquidated after the effective date of the law. As stated in the FACTS portion of this ruling, the entry under consideration was filed on February 21, 1978. The effective date of Title VI of Public Law 103-182 is the date of enactment (December 8, 1993). The entry under consideration was reliquidated on April 15, 1994.

The Customs Service has thoroughly considered the applicability of the amendment to 19 U.S.C. ?1505(c) effected by section 642(a), Title VI, Pub. L. 103-182. Customs position is that the amendment applies only to entries filed on or after December 8, 1993, and not to entries filed before December 8, 1993, and liquidated or reliquidated on or after that date. Enclosed is a copy of our ruling HQ 225576 so holding. This ruling is incorporated (by reference) into this protest decision and made a part of it. A copy of ruling HQ 225576 should be mailed with the Customs Form 19 to the protestant, as provided below. On the basis of ruling HQ 225576, the protest under consideration must be DENIED.

This ruling addresses only the effective date of the amendment to 19 U.S.C. Section 1505(c) effected by section 642(a), Title VI, Pub. L 103-182 and not the substantive application of that provision.

HOLDING:

The protest is DENIED because the amendment to 19 U.S.C. ?1505(c) effected by section 642(a), Title VI, Pub. L. 103-182 (107 Stat. 2057, 2205), applies only to entries filed on or after December 8, 1993, and not to entries filed before December 8, 1993, and liquidated or reliquidated on or after that date see enclosed ruling HQ 225576).

In accordance with Section 3A(ll)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with this decision must be accomplished prior to the mailing of the decision. Sixty days from the date of this decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and to the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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