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HQ 966167




March 10, 2003

CLA-2 RR:CR:GC 966167 AM

CATEGORY: CLASSIFICATION

TARIFF NO.: 3824.90.28

Port Director
U.S. Customs Service
610 S. Canal Street, Room 306
Chicago, IL 60607

RE: Protest 3901-02-101781; Soybean Oil Distillate

Dear Port Director:

This is in regard to protest 3901-02-101781, filed by counsel representing Archer Daniels Midland Company, against your classification of soybean oil distillate, under the Harmonized Tariff Schedule of the United States (HTSUS).

The protest should be denied because it was untimely filed.

Under 19 U.S.C. 1514(c)(3)(A) and 19 CFR 174.12(e)(1), a protest shall be filed with the Customs Service within 90 days after the notice of liquidation. The subject entry liquidated on June 28, 2002, the date handwritten on the CF 19 and printed on the CF 6445A. The Protest, Customs Form 19, reflects that it was received by your office on September 27, 2002, i.e., it was stamp-dated on that date. September 27, 2002, is 91 days after the date of liquidation, June 28, 2002, (two days in June, not including the date of liquidation, 31 days in July, 31 days in August, and 27 days in September).

Pursuant to 19 CFR 174(f): “The date on which a protest is received by the Customs officer with whom it is required to be filed shall be deemed the date on which it is filed.” Thus, the protest was filed on September 27, 2002.

For an example of the judicial treatment of a protest filed one day after the 90-day period for filing a protest, see Penrod Drilling Co. v. United States, 13 CIT 1005, 727 F. Supp. 1463, rehearing dismissed, 14 CIT 281, 740 F. Supp. 858 (1990), affirmed, 9 Fed. Cir. (T) 60, 925 F. 23d 406 (1991).

The protest is DENIED. 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, 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.

Sincerely,

John Durant, Director

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