HQ 958670: Protest 2809-95-101380; Terracotta Clay Cooker Dear Port Director:

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 958670
April 9, 1996

CLA-2 RR:TC:MM 958670 MMC

CATEGORY:  Classification

TARIFF NO.: 6912.00.48

Port Director
U.S. Customs Service 
555 Battery Street
San Francisco, CA 94111

RE:  Protest 2809-95-101380; Terracotta Clay Cooker
   
Dear Port Director:

     This is our decision concerning Protest 2809-95-101380,
filed against your classification of certain terracotta clay
cookers.  The protest (Customs Form 19) was stamped as being
received on September 26, 1995.  No liquidation date for the
entry under protest appears in block 5 of the CF 19.  The Customs
Protest and Summons Information Report (Customs Form 6445A)
indicates that the entry was liquidated on October 20, 1995.  
Additionally, it states that the invoice description appears to
indicate that the articles are classifiable under subheading
6912.00.48, Harmonized Tariff Schedule of the United States
(HTSUS).  No sample of the subject article was submitted with the
protest.  In addition to the port report, copies of the protest
form, entry summary, invoice, and bill of lading, were forwarded
to this office.   

     Section 514 (c)(2), Tariff Act of 1930, as amended [19
U.S.C. 1514 (c)(2)] provides, in pertinent part, that a protest
shall be filed "within ninety days after but not before...notice
of liquidation." [emphasis added]  Additionally, section 174.12
(e)(1) of the Customs Regulations [19 CFR 174.12 (e)(1)]
provides, in pertinent part, that "protests shall be filed
...within 90 days after...the date of notice of liquidation or
reliquidation in accordance with sections 159.9 or 159.10 of this
chapter." [emphasis added]   Therefore, because Protest 2809-95-101380 was filed prior to the October 20, 1995, liquidation of
the entries protested, the protest must be denied. 

     Furthermore, even if timely filed, the factual issues in
this case do not meet the criteria for further review of
protests.  Under 19 U.S.C. 1514(c)(1), a protest of a decision
under subsection (a) of section 1514 must set forth distinctly
and specifically each decision as to which protest is made.  In
addition, the Customs Regulations require that a protest set
forth the nature of, and justification for the objection set
forth distinctly and specifically with respect to each decision
[19 CFR 174.13(a)(6)].  The scope of review in a protest filed
under 19 U.S.C. 1514 is limited to the administrative record.  In
acting on a protest, however, Customs lacks the legal authority
to assume facts and arguments that are not presented and,
therefore, not in the official record.

     Protestant has not timely filed protest, has submitted no
evidence in support of the claim under subheading 6912.00.10,
HTSUS, nor is there other evidence of record from which we can
independently determine the validity of the claim.  

HOLDING:

     The protest should be denied, based on protestant's failure
to comply with the requirements of 19 U.S.C. 1514 and 19 CFR Part
174. 

     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 this decision
must be accomplished prior to the mailing of the decision.  Sixty
days from the date of this 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 to
the public via the Diskette Subscription Service, Freedom of
Information Act and other public access channels.
 
                              Sincerely,



                              John Durant, Director
                                        Tariff Classification
Appeals Division