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HQ 562011

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July 3, 2002

CLA-2 RR:CR:SM 562011 KSG

CATEGORY: CLASSIFICATION

TARIFF NO.: 9802.00.80

Port Director
Port of San Juan
U.S. Customs Service
#1 La Puntilla
San Juan, Puerto Rico 00901

RE: Application for Further Review of Protest No. 4904-00-10034; protestable issue

Dear Sir:

This is in reference to a Protest and Application for Further Review timely filed by counsel on behalf of Hanes Menswear, Inc., contesting the liquidation of entries filed under subheading 9802.00.80.15, of the Harmonized Tariff Schedule of the United States (“HTSUS”), involving 18 entries of boy's and men's briefs.

FACTS:

Hanes Menswear, Inc. imported 18 entries of boy's and men's briefs from the Dominican Republic entered between September 15, 1999, and October 1, 1999. The entries were liquidated between July 28, 2000, and August 11, 2000, with no change based on the values submitted by the protestant. The protestant filed the entries based on estimated costs that it submitted but did not flag the entries as estimated or indicate to Customs that the costs were estimated. The protestant argues that the entries should be reliquidated based on the actual costs that it submitted on September 10, 2001.

Hanes stated in its protest dated October 26, 2000, that the actual costs for fiscal year 1999 were "being tabulated and expected to be submitted within two weeks." Your office sent a letter to counsel dated November 24, 2000, noting that the actual costs for fiscal year 1999 had not been received as of that date. As stated above, the actual costs were submitted by the protestant on September 10, 2001. The protest in this case was timely filed; therefore the liquidation did not become final.

ISSUE:

Whether Customs should consider the costs submitted by the protestant on September 10, 2001, with regard to the entries included in this protest.

LAW AND ANALYSIS:

Subheading 9802.00.80, HTSUS, provides as follows:

Articles, except goods of heading 9802.00.90 and goods imported under provisions of subchapter XX, assembled abroad in whole or in part of fabricated components, the product of the United States, which (a) were exported in condition ready for assembly without further fabrication, (b) have not lost their physical identity in such articles by change in form, shape or otherwise, and (c) have not been advanced in value or improved in condition abroad except by being assembled and except by operations incidental to the assembly process such as cleaning, lubricating and painting.

The regulations set forth at 19 CFR 10.11 through 10.26, pertain to the construction of subheading 9802.00.80, HTSUS.

Updating cost data is provided for in 19 CFR 10.21, as follows:

When a claim for the exemption is predicated on estimated cost data furnished either in advance of or at the time of entry, this fact should be clearly stated in writing at the time of entry, and suspension of liquidation may be requested by the importer or his agent pending the furnishing of actual cost data. Actual cost data must be submitted as soon as accounting procedures permit. To insure that information used for customs purposes is reasonably current, the importer shall ordinarily be required to furnish updated cost and assembly data at least every six months, regardless of whether he considers that significant changes have occurred. The 6-month period for the submission of updated cost or other data may be extended by the port director if such extension is appropriate for the type of merchandise involved, or because of the accounting period normally used in the trade, or because of other relevant circumstances.

In this case, the importer did not update its cost data in a timely manner as required by 19 CFR 10.21 or file a reconciliation entry as allowed by 19 U.S.C. 1484(b)(1).

The protest was filed within 90 days of the liquidation of the earliest entries included in this protest and therefore, the protest is timely filed. See 19 U.S.C. 1514(c)(3).

Any error, including clerical error, mistake of fact, or inadvertence is correctable with the filing of a 1514 protest if liquidation involved a customs action/decision and the protest is filed within 90 days of liquidation. The CF 7501's bear notations of review by Customs officers. Consequently, under the decision in L.G. Electronics, U.S.A., Inc., v. United States, 991 F. Supp. 668 (CIT 1997), these "no-change" liquidations would constitute protestable actions.

We note that the "actual costs" were not submitted at the same time as the protest and in fact, were not submitted until almost a year after the protest was submitted. Since the protest was still pending at the time that the cost figures were submitted, the cost figures are considered as a part of the record in this case. We are sending this file back to the Port to examine the file, including the costs submitted on September 10, 2001, and determine the appraised value of the entries.

HOLDING:

The protest should be granted. The entries should be appraised taking into account the information provided on September 10, 2001.

In accordance with Section 3a(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, this decision should be attached to Customs Form 19, Notice of Action, and 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 this 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, the Freedom of Information Act, and other public access channels.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division


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See also:

• Tariff No.: 9802.00.80 - U.S. articles assembled abroad, which have not lost their physical identity or have not advanced in value or improved in condition abroad
• Tariff No.: 9802.00.90 - Textile and apparel goods, assembled in Mexico in which all fabric components were wholly formed and cut in the United States, etc.