CLA-2 RR:CR:TE 962299 RH
Port Director
U.S. Customs Service
555 Battery Street
San Francisco, CA 94111
RE: Application for Further Review of Protest 2809-98-100457; 19 CFR § 174.23; 19 CFR §174.12(e); 19 CFR §174.24
Dear Madam:
This is in reply to your memorandum dated October 14, 1998, regarding the Application for Further Review of Protest (AFR) 2809-98-100457, and protests 2809-98-100368 and 2809-98-100403.
The protest and AFR were filed by the law firm of Fitch, King and Caffentzis, on behalf of Broder Brothers Company, against the liquidation and assessment of duties in three entries of men' s woven jackets under subheading 6201.93.35 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Counsel contends that the garments should have been classified as water resistant garments under subheading 6201.93.3000, HTSUSA.
For the reasons set forth below, we find that the AFR was not filed in a timely manner and did not satisfy the requirements for further review. Accordingly, the protests are remanded back to the port for resolution.
FACTS:
As stated above, protest 2809-98-100457 was filed on July 27, 1998, covering three entries. The protestant filed the three entries under that protest on November 13, 1997, November 24, 1997, and February 4, 1998. Customs liquidated the first entry on May 29, 1998, and the other two entries on May 8, 1998. The protest was timely filed within ninety (90) days of liquidation.
Counsel filed protest 2809-98-100368, covering one entry, on July 1, 1998. The entry under protest was liquidated on April 3, 1998. Protest 2809-98-100403 was filed on July 13, 1998, covering another entry which was liquidated on April 17, 1998. These two protests were also filed within ninety (90) days of liquidation.
On August 28, 1998, counsel filed an "amendment" to protest 2809-98-100457 and completed Section V - Application for Further Review. On the form, counsel stated that the AFR applies to all three protests: 2809-98-100368; 2809-98-100403; and 2809-98-100457.
We note that the AFR was signed and dated by counsel on August 28, 1998, although the date received by Customs reads July 28, 1998. The latter date is an apparent typographical error, evidenced by the fact that counsel signed the AFR on August 28, 1998, and also filed a cover letter on the same day advising the import specialist handling the matter that he had filed the AFR. The date on the AFR has been corrected by Customs to accurately reflect the actual date of filing.
ISSUES:
Was the AFR filed in a timely manner?
LAW AND ANALYSIS:
Time flames governing the filing of an application for further review of a protest are set forth in section 174.23 of the Customs Regulations (19 CFR §174.23). That regulation reads, in pertinent part:
A protesting party may seek further review of a protest in lieu of review by the port director by filing, on the form prescribed in § 174.25, an application for such review within the time allowed and in the manner prescribed by § 174.12 for the filing of a protest ....
Section 174.12 (e) of the Customs Regulations (19 CFR § 174.12(e)) and section 514(c)(3) of the Tariff Act of 1930, as amended (19 U. S.C. § 1514(c)(3)), state that a protest against the liquidation of an entry "shall be filed" with the Customs Service within ninety days after the "notice of liquidation or reliquidation."
In this case, Customs liquidated the five entries under protest between April 3, 1998 and May 29, 1998. The AFR was not filed until August 28, 1998, after the 90-day period mandated by statute and regulation had expired.
Finally, we note that even if the AFR had been filed in a timely manner, it did not satisfy the criteria for further review in section 174.24 of the Customs Regulations (19 CFR §174.24). As you correctly pointed out in the attachment to the CF 6445A, Customs has previously ruled upon the questions of law and fact raised in the decision against which the protests were filed.
Accordingly, the AFR is denied and the protests are remanded back to the port for review.
HOLDING:
The AFR was not filed within 90 days of the date of liquidation of the five entries in question. Accordingly, further review is denied.
Sincerely,
John Durant, Director
Commercial Rulings Division