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HQ 225699





February 15, 1995

PRO-2-01-CO:R:C:E 225699 AJS

CATEGORY: PROTEST

Regional Commissioner of Customs
Northeast Region
10 Causeway Street
Boston MA 02222-1056

RE: Protest 0401-94-100437; 19 U.S.C. 1514(c)(3)(A); Section 645, NAFTA Implementation Act; H. Rep. No. 361; 19 CFR 174.12(d); 19 U.S.C. 1514(a).

Dear Sir or Madame:

This is our decision in protest 0401-94-100437, dated July 26, 1994, concerning voluntary tenders and drawback.

FACTS:

The subject drawback entries were liquidated on April 29, 1994, and this protest was initially filed in the Laredo district on July 26, 1994. That district returned the protest to the protestant on the grounds that the protest should be filed in the same port as that of the drawback claim. On August 16, 1994, the subject protest was filed in the Boston district.

ISSUE:

Whether the subject protest was timely filed within the meaning of 19 U.S.C. 1514(c)(3)(A).

LAW AND ANALYSIS:

19 U.S.C. 1514 was recently amended by the North American Free Trade Agreement Implementation Act (the Act) (Public Law 103-182; 107 Stat.2057) on December 8, 1993. Paragraph (c)(3)(A) was amended by section 645(1) of the Act to provide that a protest of a decision, order, or finding described in subsection (a) of this section shall be filed with "the Customs Service" within ninety days after but not before notice of liquidation or
reliquidation. The phrase "the Customs Service" was inserted for the phrase "such [i.e., appropriate] customs officer". The legislative history of section 645 does not specifically indicate the reason for this change. See H. Rep No. 361, 103d Cong., 1st Sess., p. 40; S. Rep. No. 189, 103d Cong., 1st Sess., p. 91. Section 645(3) amended subsection (c)(1) to provide that a protest may be transmitted electronically pursuant to an electronic data interchange system in accordance with regulations prescribed by the Secretary of the Treasury. We understand that the reason for the use of the phrase "the Customs Service" was to facilitate the electronic transmittal of protests by allowing such transmittals to the Customs Service as one entity and not a certain customs officer . Although, we note that regulations implementing this system have not yet been adopted.

19 CFR 191.71(d) provides that the regional commissioner shall determine the drawback due on a claim. The district director actually implements this determination by posting the bulletin notice of liquidation for the drawback entry. 19 CFR 174.12(d), the current regulation addressing the filing of protests, states that protests shall be filed with the district director whose decision is protested except that, when the entry underlying the decision protested is filed at a port other than the district headquarters, the protest may be filed with the port director at that port. In this case, the district director whose decision (i.e., the liquidation of the drawback entry) is protested is that of the Boston district director. Therefore, the subject protest was required to be filed in the Boston district within 90 days from the notice of liquidation. The subject protest was not filed within this time period and thus was untimely filed.

19 U.S.C. 1514(a), as amended by the Act, provides that decisions of the Customs Service as to the enumerated items shall be final and conclusive upon all persons (including the United States and any officer thereof) unless a protest is filed in accordance with this section or unless a civil action contesting the denial of a protest, in whole or in part, is commenced in the United States Court of International Trade. Inasmuch as a protest was not timely filed, the liquidations of the subject drawback entries are final and conclusive upon all persons. Therefore, we cannot address the substantive issue of whether voluntary tenders are eligible for drawback if tendered after the 90 day liquidation period.

HOLDING:

The protest is denied. It was not timely filed pursuant to 19 U.S.C. 1514(c)(3)(A).

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, with the Customs Form 19, 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 will take steps to make the decision available to customs personnel via the Customs rulings Module in ACS and 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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