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

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