PRO-2-01/DRA-4-CO:R:C:E 224846 JRS

Ms. Sue A. Linnemann
Assistant District Director, Commercial Operations
U.S. Customs Service
P.O. Box 619050
Dallas/Ft. Worth, Texas 75261

RE: Application for Further Review Protest No. 5501-93-100085;timeliness of protests; 19 U.S.C. 1514; Goldhofer Fahrzeugwerk GmbH & Co. v. United States; Sea-Land Service, Inc. v. United States; legal notice of liquidation; 19 CFR 159.9; 19 CFR 191.141(g)(3)

Dear Madame:

This is in response to your request for further review of the above-referenced protest. Our decision follows.


On February 8, 1993, District Director of Customs, Dallas/Fort Worth, sent a letter to the importer's broker informing him that his client's same condition drawback claim was disallowed because the notice of exportation was not received by Customs within the 3-year period from the date of exportation (191.141(3)(c)). On February 25, 1993, a broker, on behalf of its client, Westinghouse Electric Corporation, filed this protest challenging the disallowance of its drawback entry dated April 26, 1989. Subsequently, on February 26, 1993, the drawback entry was liquidated with a denial of drawback. This liquidation date appears both on the drawback entry itself as well as on the ACS entry Archive File.

Your office recommends denial, not on the fact that proof of exportation was not timely filed (which is the reason listed on the February 8, 1993 letter), but rather on the basis that the merchandise descriptions on the air cargo manifest provided as proof of exportation do not match descriptions on import invoices and that you cannot be certain that the same merchandise which was imported was in fact exported. We note, however, that a Customs inspector in San Antonio examined the merchandise and found it to be the same merchandise in the same condition as that which was imported. See box 50 on CF 7539 dated April 26, 1989.


Is a protest filed by a broker on behalf of the importer before the liquidation of a drawback entry timely?


Initially, we note that the refusal to pay a claim for drawback is a protestable issue. See 19 U.S.C. 1514(a)(6). However, a protest must be timely filed in order to give the Customs Service jurisdiction to consider the protest's merits.

The statute, 19 U.S.C. 1514, fixes a definite time within which a protest may be filed. 19 U.S.C. 1514(c)(2) requires that a protest be filed with Customs within 90 days after, but not before, notice of liquidation or reliquidation. This requirement is strictly construed. Atari Caribe v. United States, 16 CIT , , 799 F. Supp. 99, 102 (1992); see also Peg Bandage, Inc. v. United States, 17 CIT , Slip Op. 93-236 (December 15, 1993), as printed in Vol. 28 Cust. B. & Dec., No. 1, January 5, 1994, pages 268-269. Untimely filed protests are invalid. United States v. Wyman, 156 F. Supp. 97, 84 C.C.A. 123 (Mo. 1907); see also Gallagher & Ascher v. United States, 21 CCPA 313 (1933); Spiegel Bros. v. United States, 21 CCPA 310 (1933). The procedural issue turns on what is the legal notice of liquidation, and once that is determined, whether the protestant's broker filed its protest within 90 days after, but not before, that notice to give the Customs Service jurisdiction over the protest.

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, 895 (1989), aff'd, 885 F.2d 858 (Fed. Cir. 1989); Tropicana Products, Inc. v. United States, 713 F. Supp. 415, 419 (1989). This form and manner for giving notice of liquidation of formal entries is set forth in sections 159.9(b) and (c) of the Customs Regulations (19 CFR 159.9). Courtesy notice is not indispensable to liquidation, nor is it recognized as legal proof of liquidation. 19 CFR 159.9(c). Usually, courtesy notice is merely intended to inform the importer or broker that liquidation is imminent.

In this case, the bulletin notice of liquidation that was posted at the customhouse on February 26, 1993, was the only legal notice of liquidation. The earlier informal "form" letter dated February 8, 1993, informing the protestant's broker that the claim was disallowed did not amount to legal notice of liquidation. See 19 CFR 191.141(g)(3); 19 CFR 159.9(d). The broker must wait until the claim is actually liquidated to file the protest. As stressed in Goldhofer, supra, 13 CIT at 58, it is the plain duty of a prudent importer to monitor the customhouse bulletin in order to determine whether or not liquidation has been made. On February 25, 1993, liquidation of the drawback entry had not yet been effectuated, despite the misleading language in the February 8th letter that the claim had already been disallowed. The broker filed the protest on February 25, 1993, one day prior to the posting of the bulletin notice. The protest is, therefore, premature under 19 U.S.C. 1514 because it was filed before the liquidation of the drawback entry. Consequently, the protest at issue is invalid.

We note, however, that the court may, in rare instances, exercise its equitable powers and toll the statutory time limitation when a party has been induced by his adversary into allowing a filing deadline to pass. See Sea-Land Service, Inc. United States, 17 CIT , Slip Op. 93-13, 812 F. Supp. 222 (1993). In Sea-Land Service, the importer received a letter from Customs on May 30, 1990, stating that the entry in question will be liquidated, when in fact it had been liquidated 5 days earlier on May 25, 1990. The court found that Customs' erroneous letter induced Sea-Land to allow the filing deadline to pass and that Sea-Land acted reasonably in relying on Customs letter of May 30, 1990, and in assuming that the 90 days to protest would at least not commence to run until May 30, 1990. Id. at 224. The court noted that the importer had not checked the bulletin notice of liquidation, as he is required to do. Based on equitable principles, however, the court held that Sea-Land's protest was timely filed as of August 28, 1990, by extending the statutory ninety-day filing period from May 25 until May 30.

This case is distinguishable from the facts in Sea-Land Service, supra. In this case, unlike Sea-Land, Customs made no specific mention regarding the time of liquidation of the drawback entry although, arguably, liquidation was implied. Since the entry was not liquidated at the time the February 8th letter regarding the claim's disallowance was issued, Customs did not overtly mislead or interfere with the statutory time limitation of 19 U.S.C. 1514, as the court had found that the Customs Service had done in Sea-Land. Moreover, an argument can be posited that the February 8th letter, unlike the notice in Sea-Land, may not even be construed as a courtesy notice of liquidation since it did not specifically reference the time or fact of the drawback entry's liquidation.

Since this protest must be denied on procedural grounds, we are statutorily foreclosed from considering the merits of the denial of the same condition drawback claim.


A protest is considered untimely filed under 19 U.S.C. 1514(c)(2) when it filed anytime before the posting of the bulletin notice of liquidation or reliquidation at the customhouse, which is the only legal notice of liquidation.

You are directed to DENY the protest. 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 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 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, Lexis, Freedom of Information Act and other public access channels.


John Durant, Director