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HQ 953135


June 28, 1993

CLA-2 CO:R:C:M 953135 RFA

CATEGORY: CLASSIFICATION

TARIFF NO.: 8509.80.00

District Director of Customs
300 Second Avenue S.
P.O. Box 789
Great Falls, MT 59405

RE: Protest No. 3307-92-100039; Lubidet; Timely Filing

Dear District Director:

The following is our decision regarding the request for further review of Protest No. 3307-92-100039, which concerns the classification of Lubidet's personal hygiene water sprayer under the Harmonized Tariff Schedule of the United States (HTSUS). The entry was filed for the protestant by a licensed custom house broker on August 21, 1992. On October 15, 1992, a Notice of Action was issued to the protestant that the merchandise was classified differently than as entered and that the difference would result in an increase in duties. The notice stated that the entry papers were in liquidation process.

The bulletin notice of liquidation is recorded as having been posted on November 20, 1992. The protest was filed on November 17, 1992, before the protested entry was liquidated. The protest recites that the entry was not liquidated.

The statute, 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)

This protest fails to meet that statutory requirement. The appellate decision in United States v. Reliable Chemical Co., 66 CCPA 123, 605 F.2d 1179 (1979) controls here. In that case, the Customs Court reasoned that the courtesy notice of liquidation could be viewed as a notice of liquidation. On appeal, that decision was reversed. Here, the Notice of Action is no more than the courtesy notice of liquidation was in Reliable Chemical.

There being no timely protest, this protest must be denied.

A copy of this decision should be attached to Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director

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