HQ 958088: 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)

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 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