CBP Final Rule Makes Technical Corrections to the Part 174 Protest Regs

U.S. Customs and Border Protection has issued a final rule, effective January 14, 2011, which amends 19 CFR by making technical corrections to certain protest provisions within Part 174 and certain related provisions in Parts 145, 159 and 173.

Needed to Conform Regs with Changes Made by 2004 Trade Act, Mod Act, Etc.

CBP states that the technical corrections are necessary to conform 19 CFR to reflect amendments to Part 174’s underlying statutory authority effected by the Miscellaneous Trade and Technical Corrections Act of 2004, the Miscellaneous Trade and Technical Corrections Act of 1999, and the Customs Modernization (Mod Act) provisions of the North American Free Trade Agreement (NAFTA) Implementation Act.

For example, these acts amended 19 USC to (partial list):

• clarify that filing a protest is necessary to challenge clerical errors, mistakes of fact and other inadvertences for entries made on or after December 18, 2004.
• extend the time to file and amend a protest from 90 days to 180 days after the date of liquidation or reliquidation, or date of the decision, order, or finding being protested for entries made on or after December 18, 2004;
• extend the time for a surety to file a protest from 90 days to 180 days from the date of mailing of the notice of demand for payment against its bond for entries made on or after December 18, 2004;
• change the time to file a request for accelerated disposition of a protest from after 90 days of the filing of the protest to any time concurrent with or following the filing of a protest for entries made on or after December 18, 2004;
• specifically describe “entries” as “entries for consumption” and identify “entries or claims for drawback” as subject to liquidation by operation of law;
• permit the transmission of a protest to CBP "electronically pursuant to an electronic data interchange system”;
• include as a protestable decision a refusal to reliquidate an entry in response to a post-importation NAFTA claim; and
• remove CBP’s authority, in situations where a valid protest has not been filed, to reliquidate an entry to correct clerical errors, mistakes of fact, and other inadvertences for entries made on or after December 18, 2004.

Examples of Technical Changes

The following are examples of the technical changes to the regulations in 19 CFR made by the final rule:

• No-longer valid time limit removed for accelerated protest. Section 174.22, which concerns the accelerated disposition of protests, is amended to remove the 90-day time limit for filing a request for accelerated disposition (which applies to protests of decisions relating to entries made before December 18, 2004) and replaces it with the opportunity to file concurrent with or any time following the filing of a protest of a decision relating to an entry made on or after December 18, 2004.

• Electronic protests authorized, not needed in quadruplicate. 19 CFR 174.12, which sets forth the standards for the filing of protests, is amended to conform to the Mod Act’s amendment of 19 USC 1514 which authorizes the electronic transmission of protests. As a consequence of this change, 19 CFR 174.12 (b) is amended to state that electronic submissions are not required to be filed in quadruplicate.

• Updated language in definition of liquidation. 19 CFR 159.1, which sets forth the definition of liquidation as the final computation or ascertainment of the duties (not including vessel repair duties) or drawback accruing on an entry, is amended to conform to the amendments to 19 USC 1504 effected by the Trade Act of 2004, which more specifically describe “entries” as “entries for consumption” and identify “entries or claims for drawback” as subject to liquidation by operation of law.

(The final rule also makes related conforming changes to other provisions within 19 CFR, as necessitated by these statutory amendments, as well as non-substantive editorial and nomenclature changes.)

Any Amendments Requiring Statutory Interpretation to be Proposed Separately

According to CBP, any amendments to the CBP regulations, including regulations amended by this notice, that require statutory interpretation are not be included in this final rule and will be published in a separate proposed rulemaking.

(Note that as the current final rule is technical in nature, there was no proposed rule.)

CBP contact - Julia Rieper (202) 325-0226

(FR Pub 01/14/11)