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HQ 958088




August 17, 1995

CLA-2 R:C:M 958088 DFC

CATEGORY: CLASSIFICATION LIQUIDATION

TARIFF NO.: 6404.20.60

District Director of Customs
44845 Falcon Place
Sterling, Va 20166

RE: Protest 5401-94-100062; Footwear, ladies; Liquidation; Notice of liquidation; Penrod Drilling Co v. U.S. 19 U.S.C. 1514(c)(3); 19 CFR 159.9(b); 19 CFR 174.12(e)(1); 19 CFR 174.12(e)(3)

Dear District Director:

This is in response to Protest 5401-94-100062, filed by the surety for the importer, concerning your action in classifying and assessing duty on certain ladies footwear produced in England.

FACTS:

The merchandise involved consists of 11 styles of ladies footwear with leather soles and textile uppers. This footwear is valued at over $2.50/pair. The footwear was classified at the time of entry under subheading 6405.20.90, Harmonized Tariff Schedule of the United States (HTSUS), which provides for other footwear, with uppers of textile materials, other. The applicable rate of duty for this provision is 12.5% ad valorem However, this classification was considered to be erroneous and the entry covering this footwear was liquidated on May 21, 1993, under subheading 6404.20.60, HTSUS, which provides for footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials, footwear with outer soles of rubber or plastics, other, other. The applicable rate of duty for this provision is 37.5% ad valorem. The entry was reliquidated on April 29, 1994, due to an approval in part of a protest by the broker correcting conflicting claims about the material of the upper on the original entry. When the importer refused to pay the liquidated duties, demand was made on the surety for payment on August 16, 1994. The surety filed a protest on November 16, 1994, against your liquidation of the entry.

ISSUE:

Was the surety given legal notice of the liquidation of the entry?

Was the protest timely filed by the surety?

LAW AND ANALYSIS:

In addition to claiming that the liquidated classification by Customs is incorrect, the protestant claims that they were not given legal notification of the liquidation. According to section 159.9(b), Customs Regulations [19 CFR 159.9(b)], the legal notice of liquidation (including reliquidations) for an entry is the posting by Customs of the bulletin notice of liquidation in a conspicuous place in the customhouse at the port of entry. The file reflects that the legally required liquidation notice for this entry was posted in the Washington District on April 29, 1994, the date of the last liquidation. This posting is deemed the legal evidence of liquidation.

The statutory provision relating to protests of Customs decisions, including liquidations, is found in 19 U.S.C. 1514. Under this provision, the liquidation or reliquidation of an entry is final and conclusive as to all persons unless a protest is filed as provided in the provision. Such a protest must be filed within 90 days after but not before notice of liquidation or reliquidation (19 U.S.C. 1514(c)(3)). Further section 174.12(e)(1), Customs Regulations [19 CFR 174.12(e)(1)], provides that the protest shall be filed within 90 days after the date of notice of liquidation or reliquidation in accordance with 19 CFR 159.9.

Under 19 U.S.C. 1514(c)(3), "[a] protest by a surety which has an unsatisfied legal claim under its bond may be filed within 90 days from the date of mailing of notice of demand for payment against its bond." Thus, any protest by the protestant [surety] had to be filed within 90 days from August 16, 1994, which was the date the formal demand by Customs for payment of liquidated duties was mailed to the surety. The protestant's protest was received by Customs on November 16, 1994, which was 92 days from August 16, 1994. Inasmuch as the time period which elapsed between the date of formal demand by Customs and the date of filing the protest is greater than the 90 day period allowed by 19 U.S.C. 1514(c)(3)), the protest must be denied. See, e.g., Penrod Drilling Co. v. United States, 13 CIT 1005, 727 F. Supp. 1463 (1989), affirmed, 9 Fed. Cir.(T)60, 925 F.2d 406 (1991). Because the protest must be denied due to untimely filing, there is no reason to address the classification issue.

HOLDING:

Pursuant to 19 U.S.C. 1514(c)(3)), the protest was not timely filed and therefore, must be denied.

The protest should be denied. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision together with the Customs Form 19, 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, Freedom of Information Act and other public access channels.

Sincerely

John Durant, Director
Commercial Rulings Division


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