CLA-2 RR:CR:GC 961857K
U.S. Customs Service
9901 South Cage Blvd.
Pharr, Texas 78577
RE: Application For Further Review of Protest No. 2304-97-100049; Protective Protest;
19 U.S.C. 1514(c)(2)(3)
Dear Port Director:
The following is our response to the referral by your office of the request for further review of the above-referenced protest.
The protestant refers to the protest as a “protective protest” and states as follows:
Surety requested documents under the Freedom of Information Act on 01/27/97, however such documents have not been received to date. Therefore, surety hereby files a protective protest against your decision to: reclassify and/or reappraise the subject entry; deny drawback; assess antidumping/countervailing duties, marking duties, vessel repair duties, or any other special duties, charges or exaction, including but not limited to interest. Surety also protests the untimely liquidation or reliquidation and/or unlawful suspension or extension of liquidation as notification was inadequately issued, and any clerical error or mistake of fact made on the subject entry. (Emphasis added.)
The Protestant then goes on to state:
As this is a protective protest, surety initially claims: the merchandise is properly appraised at the invoice unit values; the classification and rate at time of entry is correct; the entry is entitled to drawback; the entry is not subject to antidumping countervailing duties, marking duties, vessel repair duties, or any other special duties, charges or exaction, including but not limited to interest. Surety is presently trying to gather the information and evidence necessary to establish our claims. Upon receipt of the documents under our FOIA request from U.S. Customs and/or receipt of such information from other sources, surety will complete its review and reserves the right to supplement the claims raised in our protest. In the alternative, timely notification will be served upon the District Director if no grounds for further protest are found to exist.
This, in substance, is the thrust of the surety’s protest.
The issue is whether the protestant-surety has distinctly and specifically complied with the requirements of sections (c)(1)(A)(B)(C) and (D), of 19 U.S.C. 1514.
LAW AND ANALYSIS:
Under 19 U.S.C. 1514(c)(1 ) “... a protest must set forth distinctly and specifically--
(A) each decision described in subsection (a) of this section as to which protest is made;
(B) each category of merchandise affected by each decision set forth under paragraph (1);
(C) the nature of each objection and the reasons therefor: and
(D) any other matter required by the Secretary by regulation.” (Emphasis added.)
(See also section 174.13 of the Customs Regulations (19 CFR 174.13)).
19 U.S.C. 1514(c)(1) also states that “[n]ew grounds in support of objections raised by a valid protest or amendment thereto may be presented for consideration in connection with the review of such protest pursuant to section 1515 of this title at any time prior to the disposition of the protest in accordance with that section.”
The protestant has not distinctly and specifically identified which Customs decision under 19 U.S.C. 1514(a) is being protested and has not even attempted to articulate any objective reasons therefore, other than attempting to file a protective protest in the event the protestant may later find some basis to substantiate a protest. This is not a situation in which a protestant has identified a Customs decision it is timely protesting under 19 U.S.C. 1514(a) and has merely requested additional time to research and prepare its arguments. The protestant’s request for further review may be summarily disposed of. The scope of review in a protest is on the administrative record, and the protestant has not presented any evidence in support of its assertions stated above. The protestant has articulated some of its assertions as follows.
1. The protestant, as a surety, has not affirmatively denied coverage but, asserts that it “presently” has no information available indicating that it is in fact the surety on the bond(s) used to the secure the merchandise in question. The protest contained a print out, a formal demand on surety, from the United States Customs Service Automated Commercial Service, dated November 2, 1996. The print out contained the name of the surety and the surety’s number, the number of the surety bond, the name and address of the importer, the importer’s number, and listed the numbers of the consumption entries involved indicating the amounts of duties due with interest. The demand notice contains sufficient information for the surety to check its records for confirmation or denial of coverage.
2. The protestant claims that the date of mailing by the National Finance Center (U.S. Customs Service), of the notice of demand for payment against the bond was on November 7, 1996, and, therefore, the protest was timely filed as required for a protest by a surety under 19 U.S.C. 1514(c)(3). No documentation was submitted with the protest to substantiate timeliness of the protest. Even if the protestant substantiated that the protest was timely filed, the protestant has not complied with the requirements of sections (c)(1)(A)(B)(C) and (D), of 19 U.S.C. 1514, and section 174.13(a)(6) of the Customs Regulations (19 CFR 174.13(a)(6)).
The entries were liquidated by Customs under subheadings 9906.07.19 and 9906.07.20, Harmonized Tariff Schedule of the United States (HTSUS). The protestant has not specifically stated that it is protesting the classification and has offered no opinion as where it believes the merchandise should be classified, or why the classification by Customs was wrong. We would have to assume that the protestant believes the merchandise is classified as the importer entered the merchandise rather than as classified by Customs upon liquidation. Customs is not required to guess at what is being protested.
The surety, by law, had ninety days after the demand for payment to determine whether a decision of a Customs official was protestable under 19 U.S.C. 1514(a) and to file a timely protest identifying the decision protested and why. The protestant asserted a claim to supplement the protest and still no further submissions were submitted. The surety has failed to distinctly and specifically identify the decision protested and the reasons therefor.
A “Protective Protest” as described under the facts, which does not distinctly and specifically describe the decision that is protested, and does not provide objections and reasons for protesting a decision, does not meet the criteria for further review as outlined in section 174.24 of the Customs Regulations (19 CFR 174.24). The application for further review should not be approved and the protest denied because the protestant-surety has not complied with the requirements of sections (c)(1)(A)(B)(C) and (D), of 19 U.S.C. 1514, and section 174.13(a)(6) of the Customs Regulations ( 19 CFR 174.13(a)(6)). See Headquarters Ruling Letters 227411, dated May 29, 1997, and 223267, dated June 20, 1991. See also, the recent decision of Koike Aronson, Inc. v. U.S., 165 F.3d 906 (Fed.Cir., January 5, 1999).
You are directed to deny the protest in full.
The merchandise involved in the liquidations consists of sprouting broccoli and is classified in subheading 0704.90.40, HTSUS, and subject to the NAFTA duty rates found in subheadings 9906.07.19 or 9906.07.20, HTSUS. See Headquarters Ruling Letter 957504, dated April 17, 1995, covering similar merchandise.
In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, Revised Protest Directive, dated August 4, 1993, a copy of this decision attached to Customs Form 19, Notice of Action, should be provided by your office to the protestant no later than 60 days from the date of this decision. Since there are no reliquidations involved in this protest, you should be able to accomplish this direction prior to the 60 day period.
Sixty days from the date of this decision the Office of Regulations and Rulings will take steps to make this decision available to Customs personnel, and to the general public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act and other public access channels.
John Durant, Director
Commercial Rulings Division