(5) A certificate conforming to subparagraphs (1), (2), or (3) of this paragraph shall be accepted as evidence of the facts alleged therein only if (i) there is annexed thereto a copy of the commercial invoice or bill of lading covering the articles or other documentary matter which identifies the articles to which the certificate pertains, (ii) the certificate is signed by the manufacturer or producer of the articles to which it pertains, or by the person who exported the articles from the Philippines, and (iii) it clearly appears that such copy or other documentary matter was annexed to the certificate when it was signed.

(Secs. 2, 201-205, 214, 60 Stat. 141, 143, 144, 146; 22 U. S. C. 1251-1255, 1264, 1360) [18 F. R. 8045, Dec. 18, 1948, as amended by T. D. 53268, 18 F. R. 3094, May 29, 1953]

17.9

17.11

Antidumping; protests and appeals; procedure.

American producers' appeals and protests; procedure.

AUTHORITY: §§ 17.1 to 17.11 issued under R. S. 161, 251, sec. 624, 46 Stat. 759; 5 U. S. C. 22, 19 U. S. C. 66, 1624. Statutory provisions interpreted or applied and special rule making authority are cited to text in parentheses. PROTESTS

§ 17.1 Protest; form of. (a) Protests (except protests by American manufacturers, producers, and wholesalers) filed against decisions of the collector shall be

in the form and filed within the time prescribed by section 514, Tariff Act of 1930.'

(b) Each protest shall be in triplicate, addressed to the collector, and signed by the person protesting or his agent or attorney. Each protest shall show the address of the protestant and the address of his agent or attorney, if signed by one of these, the number and date of the entry, the name of the importing carrier, the date of importation, and the date of the liquidation of the entry, and it shall set forth distinctly and specifically with respect to each entry, payment, claim, decision, or refusal the reasons for the objection, stating the rate or rates of duty claimed to be applicable and the paragraph or section of the law, if any, under which relief is claimed.

(c) The date of liquidation for the purpose of computing the time for filing a protest under section 514, Tariff Act of 1930, shall be the date of posting or lodg

1

"Except as provided in subdivision (b) of section 516 of this Act (relating to the protests by American manufacturers, producers, and wholesalers), all decisions of the collector, including the legality of all orders and findings entering into the same, as to the rate and amount of duties chargeable, and as to all exactions of whatever character (within the jurisdiction of the Secretary of the Treasury), and his decisions excluding any merchandise from entry or delivery, under any provision of the customs laws, and his liquidation or reliquidation of any entry, or refusal to pay any claim for drawback or his refusal to reliquidate any entry for a clerical error discovered within one year after the date of entry, or within sixty days after liquidation or reliquidation when such liquidation or reliquidation is made more than ten months after the date of entry, shall, upon the expiration of sixty days after the date of such liquidation, reliquidation, decision, or refusal, be final and conclusive upon all persons (including the United States and any officer thereof), unless the importer, consignee, or agent of the person paying such charge or exaction, or filing such claim for drawback, or seeking such entry or delivery, shall, within sixty days after, but not before such liquidation, reliquidation, decision, or refusal, as the case may be, as well in cases of merchandise entered in bond as for consumption, file a protest in writing with the collector setting forth distinctly and specifically, and in respect to each entry, payment, claim, decision, or refusal, the reasons for the objection thereto. The reliquidation of an entry shall not open such entry so that a protest may be filed against the decision of the collector upon any question not involved in such liquidation." (Tariff Act of 1930, sec. 514, 19 U. S. C. 1514)

ing a notice of the liquidation in accordance with § 16.2 or § 16.12 of this chapter.

(d) The date of the decision of the collector excluding any merchandise from entry or delivery under any provision of the customs revenue laws shall be the date of his written notice to the importer that entry or delivery will not be allowed. The action of the collector or other customs officer in seizing or directing the seizure of merchandise shall not constitute a notice of exclusion for the purpose of this paragraph.

(Sec. 514, 46 Stat. 734; 19 U. S. C. 1514) [13 F. R. 8053, Dec. 18, 1948, as amended by T. D. 53336, 18 F. R. 5423, Sept. 9, 1953]

§ 17.2 Power of attorney to file protest. (a) Except as hereinafter provided in this paragraph, no protest signed by an agent or attorney shall be granted or denied by the collector unless there has been filed, or is filled with the protest, in the collector's office a power of attorney on customs Form 5295 or 5295-A or other form as explicit in its terms as is the prescribed customs form, authorizing such agent or attorney to make, sign, and file the protest. Such powers of attorney issued by a partnership shall be limited to a period not to exceed 2 years from the date of receipt thereof by the collector. All other powers of attorney may be granted for an unlimited period but shall be subject to revocation prior to the date of expiration stated therein by written notice given to and received by the collector. When a protest is filed by an agent or attorney not named in a power of attorney as required by this section, it shall be numbered and stamped with the date of receipt in order to establish whether it was filed within the period prescribed by section 514, Tariff Act of 1930, and the collector shall cause an investigation to be made to ascertain whether the agent or attorney was duly authorized to file the protest. If it is found upon such investigation that the agent or attorney was so authorized, the protest shall be reviewed by the collector and granted or denied and referred to the customs court as in cases where a proper power of attorney has been filed. If it is found upon such investigation that the agent or attorney was not duly authorized to file the protest, the purported protest shall not be granted or denied by the collector but shall be transmitted, together with the entry and accompanying papers and all

exhibits connected therewith, to the United States Customs Court, with a communication explaining to the court that the agent or attorney who filed the purported protest was not named in a power of attorney, that it was found upon investigation that the agent or attorney was not authorized to file the protest, and that the collector has been prevented from complying with section 515 of the tariff act by the lack of authority of the agent or attorney to file the protest, inasmuch as section 514 specifies the only persons by or on whose behalf protests may be filed with the collector and section 515 does not authorize the collector to grant any purported protest or (if he does not agree with the claim) to deny it and refer it to the court for litigation on the merits, until the statutory prerequisite that it has been filed by an authorized person has been established.

(b) A partnership power of attorney to file protests may be executed by one member in the name of the partnership, provided the power recites the names of all the members. A corporate power of attorney to file protests shall be signed by a duly authorized officer or employee of the corporation and, if the collector is otherwise satisfied as to the authority of such corporate officer or employee to grant such power of attorney, compliance with the requirements of § 8.19 (e) of this chapter may be waived with respect to such power.

(Secs. 514, 515, 46 Stat. 734; 19 U. S. C. 1514, 1515) [13 F. R. 8053, Dec. 18, 1948]

§ 17.3 Collector's review on protest; transmission of protests and samples to the United States Customs Court. (a) The collector, after reviewing so much of his liquidation as is covered by the protest, may reliquidate the entry involved, assessing the duties believed by him at that time to be correct.❜

2 "Upon the filing of such protest the collector shall within ninety days thereafter review his decision, and may modify the same in whole or in part and thereafter remit or refund any duties, charge, or exaction found to have been assessed or collected in excess, or pay any drawback found due, of which notice shall be given as in the case of the original liquidation, and against which protest may be filled within the same time and in the same manner and under the same conditions as against the original liquidation or decision. If the collector shall, upon such review, affirm his original decision, or if a protest shall be filled against his

(b) Samples shall not be required when the question involved is one of law which does not necessitate an inspection of the merchandise by the court, or when the merchandise is heavy, bulky, or otherwise of such character as to make the retention of samples impracticable. When no samples have been retained by the appraiser, they shall be furnished to the collector by the protestant in appropriate cases and transmitted to the appraiser for verification. If samples are sent to the court at the importer's request, the transportation charges shall be paid by him. If samples are needed to sustain the Government's case, they shall be sent by mail, if possible, under Government frank; otherwise under Government bill of lading.

(Sec. 515, 46 Stat. 734; 19 U. S. C. 1515) [13 F. R. 8053, Dec. 18, 1948]

§ 17.4 Decisions of United States Customs Court; appeals; reliquidation; refunds. (a) An entry which is the subject of a decision of the United States Customs Court shall be reliquidated in harmony with the judgment order thereon at the expiration of 60 days from the date of the decision, or 90 days in the case of entries covering merchandise imported into Alaska or the insular possessions of the United States, unless an appeal or motion for a rehearing is filed,' except that entries the subject of

modification of any decision, and, in the case of merchandise entered for consumption, if all duties and charges shall be paid, then the collector shall forthwith transmit the entry and the accompanying papers, and all the exhibits connected herewith, to the United States Customs Court for due assignment and determination, as provided by law. Such determination shall be final and conclusive upon all persons, and the papers transmitted shall be returned, with the decision and judgment order thereon, to the collector, who shall take action accordingly, except in cases in which an appeal shall be filed in the United States Court of Customs and Patent Appeals within the time and in the manner provided by law." (Tariff Act of 1930, sec. 515; 19 U. S. C. 1515)

"Any party to a proceeding before the Customs Court who is dissatisfied with the decision of such court as to the construction of the law and the facts respecting the classification of imported merchandise and the rate of duty imposed thereon under such classification, or with any other appealable decision of such court, may, not later than sixty days after the entry of the decision, apply to the Court of Customs and Patent Appeals for a review of all questions of law and fact. In cases arising in the Territories

decisions of the court, which follow a decision of the Court of Customs and Patent Appeals involving the same issue. may ordinarily be reliquidated immediately upon receipt of the judgment orders from the United States Customs Court. (b) An entry covering merchandise the subject of a decision of the Court of Customs and Patent Appeals shall be reliquidated only upon receipt of the judgment order from the United States Customs Court, but no such entry shall be liquidated pursuant to such order if an appeal is taken to the Supreme Court."

(c) Refund of duties on reliquidation by reason of any ruling or decision of the Bureau, the United States Customs Court, or the United States Court of Customs and Patent Appeals shall be made in accordance with § 24.36 of this chapter.

(Sec. 515, 46 Stat. 734; 19 U. S. C. 1515) [13 F. R. 8053, Dec. 18, 1948, as amended by T. D. 53399, 18 F. R. 8689, Dec. 24, 1953]

and Possessions ninety days shall be allowed for making such application.

"The application shall be made by filing in the office of the clerk of the Court of Customs and Patent Appeals a concise statement of errors of law and fact complained of; and a copy of such statement shall be served on the collector, or on the importer, owner, consignee, or agent, as the case may be. Thereupon the Court of Customs and Patent Appeals shall immediately order the Customs Court to transmit the record and evidence taken, together with a certified statement of the facts involved in the case and the decision thereon; and all the evidence taken by and before the Customs Court shall be competent evidence before the Court of Customs and Patent Appeals. The decision of the Court of Customs and Patent Appeals shall be final unless set aside or modified by the Supreme Court, and the case shall be remanded to the Customs Court for further proceedings to be taken in pursuance of such decision." (28 U. S. C. 2601)

"The Court of Customs and Patent Appeals shall have jurisdiction to review by appeal final decision of the Customs Court in all cases as to the construction of the law and the facts respecting the classification of merchandise, the rate of duty imposed thereon under such classifications, and the fees and charges connected therewith, and all appealable questions as to the jurisdiction of the Customs Court and as to the laws and regulations governing the collection of the customs revenues." (28 U. S. C. 1541)

"Cases in the Court of Customs and Patent Appeals may be reviewed by the Supreme Court by writ of certiorari." (28 U. S. C. 1256)

§ 17.5 Stipulations. (a) Each stipulation, whether following a decision of the Customs Court or the Court of Customs and Patent Appeals or embracing an agreed statement of facts, which is to be certified by a customs employee, shall be presented in triplicate to the office of the Assistant Attorney General, Civil Division, Customs Section, 201 Varick Street, New York 14, N. Y., from which it will be forwarded for certification to the appraiser or collector for the district in which the related protest or appeal for reappraisement was filed. The said Customs Section will forward with the stipulation the pertinent entry papers and other documents.

(b) Each item or class of merchandise mentioned in the body of the stipulation shall be identified by a separate capital letter and by the initials of the certifying officer, but in no case shall the letter or symbol "X" be used for such identification purposes. The stipulation shall indicate that the merchandise is so marked on the invoice by a statement in substantially the following form:

It is hereby stipulated and agreed by and between counsel for the plaintiff and the Assistant Attorney General, attorney for the United States, that the merchandise___.

covered by the protests

(Give description) enumerated in Schedule A, attached, and represented by the items marked "A," "B," "C," etc., on the invoice(s), and checked by

(d) If any protest number or entry number is to be deleted from a schedule of protest numbers or entry numbers attached to or embodied in a stipulation, a line shall be drawn through the number and the change shall be initialed by the attorney for the importer and the customs officers making and approving the certificate.

(e) No stipulation which does not conform to the requirements of these regulations, or with respect to which there is doubt, shall be certified unless it is approved by an authorized representative of the Assistant Attorney General's office. [13 F. R. 8054, Dec. 18, 1948, as amended by T. D. 53399, 18 F. R. 8689, Dec. 24, 1953]

REAPPRAISEMENT AND REVIEW

§ 17.6 Notice of advance. The collector at the headquarters port, or the deputy collector in charge at any other port, shall promptly give notice of appraisement on customs Form 4301 when such notice is required by section 501, Tariff Act of 1930, as amended. The notice shall be prepared in duplicate and the retained copy, with the date of mailing or delivery noted thereon, shall be securely attached to the invoice.

(Sec. 501, 46 Stat. 730, as amended; 19 U. S. C. 1501) [13 F. R. 8055, Dec. 18, 1948, as amended by T. D. 53336, 18 F. R. 5423, Sept. 9, 1953]

§ 17.7 Appeal for reappraisement; form; samples; certification of documents. (a) When the collector appeals for reappraisement he shall use customs Form 4305 and at once forward a copy of the appeal to the consignee or his agent or attorney. Such appeal shall specify the particular items in the invoice affected if it does not apply to all.

(b) The appeal of a consignee or his agent shall be filed with the collector in triplicate.' Customs Form 4305 may be

"The collector shall give written notice of appraisement to the consignee, his agent, or his attorney, if (1) the appraised value is higher than the entered value, or (2) a change in the classification of the merchandise results from the appraiser's determination of value, or (3) in any case, if the consignee, his agent, or his attorney requests such notice in writing before appraisement, setting forth a substantial reason for requesting the notice. **** (Tariff Act of 1930, sec. 501, as amended; 19 U. S. C. 1501) The decision of the appraiser, including all determinations entering into the same shall be final and conclusive upon all parties unless a written appeal for a reap

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used for this purpose. The post office address of the consignee or his agent shall be set forth in each appeal.

(c) When an appeal for reappraisement by the collector or by the consignee or his agent has been completed, the collector shall transmit the invoices and all papers pertaining to reappraisement (except advance reports, customs Form 6445, and documentary evidence attached thereto) with customs Form 3085 to the United States Customs Court, 201 Varick Street, New York, N. Y.

(d) When samples are sent to the court at the importer's request, the transportation charges shall be paid by him.

(e) The director of the Customs Information Exchange, New York, N. Y., the person authorized to act in that capacity during the absence or disability of the director, and any other official designated by the Commissioner of Customs, shall certify copies of official documents for the purpose set forth in section 2633, 28 U. S. Code.

448 * • A decision of the appraiser that foreign value, export value, or United States value can not be satisfactorily ascertained shall be subject to review in reappraisement proceedings under section 501; but in any such proceeding, an affidavit executed outside of the United States shall not be admitted in evidence if executed by any person who fails to permit a Treasury attaché to inspect his books, papers, records, accounts, documents, or correspondence, pertaining to the value or classification of such merchandise." (Tariff Act of 1930, sec. 402 (b); 19 U. S. C. 1402 (b)) 8 449 • · Every such appeal shall be transmitted with the entry and the accompanying papers by the collector to the United States Customs Court (Tariff Act of 1930, sec. 501 (a), as amended; 19 U. S. C. 1501 (a))

Sa "In finding the value of merchandise, in reappraisement proceedings before a single Judge of the Customs Court, affidavits and depositions of persons whose attendance cannot reasonably be had, price lists and catalogues, reports or depositions of consuls,