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HQ 959281




July 8, 1997

CLA-2 RR:TC:MM 959281 PH

CATEGORY: CLASSIFICATION

TARIFF NO.: 6905.10.00; 6907.90.00

Port Director of Customs
#1 La Puntilla
San Juan, Puerto Rico 00901

RE: Protest 4909-96-100015; Roofing tiles and other ceramic constructional goods; Unglazed ceramic flags and paving, hearth or wall tiles; Refractory articles; Additional U.S. Note 2, Chapter 69; 6902.90.10; 6905.10.00; 6907.90.00; Blanket surety protest; Untimely protest; 19 U.S.C.

Dear Port Director:

This is our decision on Protest 4909-96-100015, filed against the demand on the protestant-surety for payment of duties, as rate-advanced and liquidated, for a January 20, 1995, entry of certain unglazed ceramic tile. The entry for which the demand was made was liquidated on August 4, 1995. The date of the demand on the surety, according to the protestant and documents in the file, was November 2, 1995. The protest was filed on February 1, 1996. According to the file and Customs records, the importer filed a request for reliquidation of the entry under 19 U.S.C. 1520(c)(1) which was denied on December 21, 1995. According to Customs records, the bill for which the protested demand on surety was made has been paid.

The scope of review in this protest is on the administrative record, and the protestant has not presented any evidence in support of its bald assertions. The Customs Service will not grant further review of a blanket protest. The protestant must comply with the statutory and regulatory requirements. Under 19 U.S.C. 1514(c)(1), a protest of a decision must set forth distinctly and specifically each decision as to which protest is made. See generally, United States v. Parksmith Corp., 62 CCPA 76, 514 F. 2d 1052, C.A.D. 1149 (1975); American Commerce Co. v. United States, 42 Cust. Ct. 98, 173 F. Supp. 812, C.D. 2072 (1959); United States v. E. H. Bailey & Co., 32 CCPA 89, C.A.D. 291 (1944).

In this protest, the protestant files a "protective protest" against Customs decision to "reclassify and/or reappraise the subject entry", "deny drawback", "assess antidumping or countervailing duties, marking duties, vessel repair duties, or any other special duties, charges or exaction, including but not limited to interest." The protest also protests "the untimely liquidation or reliquidation and/or unlawful suspension or extension of liquidation as notification was inadequately issued" and "any clerical error or mistake of fact made on the subject entry." The protestant "protests the liability of the subject liquidations [on the basis that] [s]urety presently has no information indicating that [the protestant surety] is in fact the surety on the bond(s) used to secure the merchandise in question."

The Customs Regulations (19 CFR 174.13(a)(6)) require that a protest set forth "[t]he nature of, and justification for the objection set forth distinctly and specifically with respect to each category, payment, claim, decision, or refusal." The Customs Service has and will continue to fully consider any relevant allegation in a protest supported by competent evidence. However, in acting on a protest, Customs cannot and will not assume facts that are not presented (e.g., an unsubstantiated claim that the surety-protestant was not surety on the bond(s) used to secure the merchandise in question (in this regard, we note that Customs records show the surety-protestant as surety on the bond used to secure the merchandise in question)).

Furthermore, the protest in this case was untimely. 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." In this case, the date of the demand was November 2, 1995. The protest against the demand was filed on February 1, 1996. Thus, the protest was filed on the 91st day after the date of the demand (28 days in November, 31 days in December, 31 days in January, plus 1 day in February). For an example of the judicial treatment of a protest filed 1 day after the 90-day period for filing a protest, see Penrod Drilling Co. v. United States, 13 CIT 1005, 727 F. Supp. 1463, rehearing dismissed, 14 CIT 281, 740 F. Supp. 858 (1990), affirmed, 9 Fed. Cir. (T) 60, 925 F. 2d 406 (1991).

For your information, we are briefly considering the classification of the merchandise under consideration in this case. The importer's claimed classification is under subheading 6902.90.10, HTSUS. The rate-advanced and liquidated classification is under subheadings 6905.10.00, HTSUS (for the Coppi style, a roofing tile), and 6907.90.00, HTSUS (for the Terracotte, Stair Skirting, and Scamillo Stair style, flooring tiles). The subheadings under consideration are as follows:

6902.90.10: [r]efractory bricks, blocks, tiles and similar refractory ceramic constructional goods, other than those of siliceous fossil meals or similar siliceous earths: ... [o]ther: [b]ricks.

Goods classifiable under this provision receive duty-free treatment.

6905.10.00: [r]oofing tiles, chimney pots, cowls, chimney liners, architectural ornaments and other ceramic constructional goods: [r]oofing tiles.

The 1995 general, column one rate of duty for goods classifiable under this provision is 13.5 percent ad valorem.

6907.90.00: Unglazed ceramic flags and paving, hearth or wall tiles; unglazed ceramic mosaic cubes and the like, whether or not on a backing: ... [o]ther.

The 1995 general, column one rate of duty for goods classifiable under this provision is 19 percent ad valorem.

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUS, states, in part, that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes...." For a ceramic article to be classified under either headings 6902 or 6903, it must meet the definition of refractory as found in Additional U.S. Note 2, Chapter 69, HTSUS, which states that:

For the purposes of headings 6902 and 6903, the term "refractory" is applied to articles which have a pyrometric cone equivalent of at least 1500 C when heated to 60 C per hour (pyrometric cone 18). Refractory articles have special properties of strength and resistance to thermal shock and may also have, depending upon the particular uses for which designed, other special properties such as resistance to abrasion and corrosion.

In this case, a sample of each of the styles was analyzed by Customs. Each sample was found "... not [to] meet the characteristics of refractory material" (Customs Laboratory Reports 9-96-20182-001, 9-96-20183-001, 9-96-20184-001, and 9-96-20185-001, each dated January 16, 1996. On the basis of Additional U.S. Note 2, Chapter 69, HTSUS, the tiles under consideration are precluded from classification under heading 6902, HTSUS. The Coppi style tiles are classifiable under subheading 6905.10.00, HTSUS, as roofing tiles, and the Terracotte, Stair Skirting, and Scamillo Stair style tiles are classifiable under subheading 6907.90.00, HTSUS, as other unglazed ceramic flags and paving, hearth or wall tiles.

Therefore, even if the protest had been timely and had met the requirements in 19 CFR 174.13(a)(6) by setting forth "[t]he nature of, and justification for the objection ... distinctly and specifically with respect to each category, payment, claim, decision, or refusal[,]" the protest would have been denied on substantive grounds, as explained above.

Based on the foregoing discussion, this protest should be DENIED IN FULL (please note that if, as indicated by Customs records, duties and other charges for the entry under consideration have been paid, this denial of the protest will have no effect).

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, you should mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries 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, the Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director,

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