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HQ 967150




February 23, 2005

CLA-2 RR:CR:GC 967150 IOR

CATEGORY: CLASSIFICATION

TARIFF NO.: 8504.90.9590 HTSUSA

Port Director
U.S. Customs and Border Protection
1699 E. Carr Road
Calexico, CA 92231
Attn: Sonya Hodgers, Entry Supervisor

RE: Protest AFR 2507-04-100001; brackets

Dear Port Director:

This is our decision on Protest 2507-04-100001, filed by the importer, Leibert Corporation, against your classification of various brackets, under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The protest covers one entry of base metal brackets. The merchandise was entered under subheading 8302.50.00, HTSUS. On December 17, 2003, a Notice of Action was issued to the protestant by Customs and Border Protection (“CBP”), notifying the protestant that the entry had been rate advanced, was in the process of liquidation, and was no longer available for review, by that office. The Notice of Action stated that the merchandise has been liquidated under subheading 8504.90.95, HTSUS. This protest was filed on February 3, 2004. The entry which is the subject of the protest was liquidated on October 10, 2004, under subheading 8504.90.95, HTSUS, as “Electrical transformers, static converters (for example, rectifiers) and inductors; parts thereof: Parts: Other: Other.” Protestant claims classification of the brackets under subheading 8302.50.00, HTSUS, which provides for brackets and similar fixtures, and parts thereof.

ISSUE:

Whether the protest may be granted?

LAW AND ANALYSIS:

Initially, we note that the classification, rate and amount of duties chargeable is a protestable issue (see 19 U.S.C. 1514(a)(1)). However, insofar as timeliness of the protest is concerned, the statute providing for protests provides that:

A protest of a decision, order, or finding described in subsection (a) of this section shall be filed with [CBP] within ninety days after but not before— notice of liquidation or reliquidation, or in circumstances where subparagraph (A) is inapplicable, the date of the decision as to which protest is made.

19 U.S.C. §1514(c)(3), emphasis added. See also, 19 CFR §174.12(e) ("Protests shall be filed, in accordance with ... (19 U.S.C. §1514) within 90 days after either ... [t]he date of notice of liquidation or reliquidation ... [t]he date of the decision, involving neither a liquidation nor reliquidation, as to which the protest is made ...").

In this case, the protest was filed within 90 days of the Notice of Action, notifying the importer of the proposed classification of the entered merchandise, but well before the October liquidation of the entry.

The requirement that protest be filed within 90 days after but not before notice of liquidation or reliquidation or the date of the decision protested has been interpreted by the Courts. See The Best Foods, Inc. v. United States, 37 Cust. Ct. 1, 9-10, 147 F. Supp. 749, C.D. 1791 (1956) (prematurely filed protest dismissed); and United States v. Reliable Chemical Co., 66 CCPA 123, 605 F. 2d 1179, C.A.D. 1232 (1979) (prematurely filed protest, filed after a "courtesy" notice advising of scheduled liquidation but before the date of the bulletin notice of liquidation, dismissed in appellate decision reversing lower court's denial of motion to dismiss). In the The Best Foods case, the court cited to United States v. B. Holman, Inc., 1941, 29 C.C.P.A., Customs, 3, C.A.D. 164, which stated, at page 14:

'* * * all decisions of the collector involved in the ascertaining and fixing of the rate and amount of duties chargeable against imported merchandise entered for consumption are merged in and become a part of a legal liquidation, and it is a legal liquidation only, so far as the issues here are concerned, against which a protest will lie. * * *'

In the Reliable Chemical Co. case, the court stated with respect to a courtesy notice of liquidation which may have misled an importer to conclude that
the entry had been liquidated when in fact it had not:

Early notice of liquidation, forwarded as a "courtesy" by the Government, is not and cannot be converted into the statutory notice at the election of an importer. To weaken or ignore clear and specific rules regarding the bulletin notice of liquidation could result in such uncertainty as to produce unfairness to the Government and to other importers.

605 F.2d at 1184. It is well settled that the only notice of liquidation that is statutorily mandated is bulletin notice. See Goldhofer Fahrzeugwerk GmbH & Co. v. United States, 13 CIT 54, 706 F. Supp. 892 (1989), aff'd, 885 F.2d 858 (Fed. Cir. 1989); Tropicana Products, Inc. v. United States, 13 CIT 390, 395, 713 F.Supp. 415 (1989). The bulletin notice is the only effective notice of liquidation and the courtesy notice is predictive only. SSR v. Robles, 18 C.I.T. 475, 476, 853 F. Supp. 451 (1994). The Court of International Trade has held that the importer has the burden to check for posted notices of liquidation and to protest in a timely manner. See, Juice Farms, Inc. v. United States, 18 CIT 1037, 1040 (1994) aff’d, 68 F.3d 1344 (Fed. Cir. 1995) (stating that although Customs erroneously liquidated entries, protestant had no relief to protest after the running of 90 day periods after the posting of the bulletin notices of liquidation).

On the basis of the foregoing, we have no choice but to DENY the protest as prematurely filed.

HOLDING:

There is no authority to grant the protest in this case, because the protest was prematurely filed.

The protest should be DENIED. In accordance with the Protest/Petition Processing Handbook (CIS HB, June 2002, pp. 18 and 21), you are to mail this decision, together 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 and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

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