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HQ 955862


February 16, 1994

CLA-2 CO:R:C:F 955862 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 3604.90.00

District Director of Customs
55 Erieview Plaza
Plaza Nine Building, 6th Floor
Cleveland, Ohio 44114

RE: Application for Further Review of Protest No. 4101-93- 100046, filed February 17, 1993; Timeliness of Protest

Dear Sir:

This is a decision in response to the referral from your office of a protest against your decision in the classification and liquidation in April 1993, of an entry of small explosives identified as "Party Snappers."

FACTS:

You classified the merchandise under subheading 3604.90.00, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), the provision for "Fireworks, signaling flares, rain rockets, fog signals and other pyrotechnic articles: Other," with an applicable duty rate of 7.5 percent ad valorem. Protestant claims that the merchandise should be classified under subheading 9505.90.20, HTSUSA, the provision for "Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: Other: Magic tricks and practical joke articles; parts and accessories thereof," and that the applicable duty rate should be 5.8 percent ad valorem.

From the facts presented in the protest file, we conclude that the protest is untimely and should be denied. The essential facts and basis for this decision are contained in the law and analysis below.

ISSUE:

Whether a timely protest was filed under 19 U.S.C. 1514.

LAW AND ANALYSIS:

In part pertinent to this case, title 19 U.S.C. section 1514, states that decisions of the appropriate customs officer as to the liquidation of an entry shall be final and conclusive upon all persons unless a protest is filed with such customs officer within ninety days after but not before (emphasis added) the notice of liquidation. The protestant filed the subject protest on February 17, 1993. However the consumption entry to which the protest relates was not liquidated until April 30, 1993. Accordingly, the protest is untimely under 19 U.S.C. 1514.

HOLDING:

You are instructed to deny the protest as untimely. A copy of this decision should be attached to the Form 19 to be returned to the protestant.

In accordance with Section 3A(11)(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 the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the 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, Lexis, the Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director

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