HQ 225699: 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); 19U.S.C. 1514(a).

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            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 




                               -2-

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).





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     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