HQ 966836 - Application for Further Review of Protest No.: 2304-03-100119; Lunch Box Style Metal Container; Tinplated Iron or Steel; Subheading 7326.90.1000, HTSUSA; Untimely Filing of Protest. - United States International Trade Commision Rulings

United States International Trade Commision Rulings And Harmonized Tariff Schedule

faqs.org Rulings By Number Rulings By Category Tariff Numbers

faqs.org > Rulings and Tariffs Home > Rulings By Number > 2004 HQ Rulings > HQ 966772 - HQ 966839 > HQ 966836

Previous Ruling Next Ruling
HQ 966836

April 1, 2004

CLA-2 RR:CR:TE 966836 SG

CATEGORY: CLASSIFICATION

TARIFF NO.: 7326.90.8586
Port Director
U.S. Customs Service
Lincoln/Juarez Bridge #2
Administration Building 2
Laredo, TX 78040

RE: Application for Further Review of Protest No.: 2304-03-100119; Lunch Box Style Metal Container; Tinplated Iron or Steel; Subheading 7326.90.1000, HTSUSA; Untimely Filing of Protest.

Dear Port Director:

FACTS:

This is in response to the request for further review of a protest filed by Gayle Aker Rodriquez, Customhouse broker for Ross Acquisition Company doing business as Galerie au Chocolat against Customs and Border Protection’s (CBP) decision to deny "liquidation at a reduced rate and a refund of duties paid" on 19 unliquidated entries cited in Supplemental Information Letter (SIL) numbered 2304-S-02-0115 dated May 21, 2002. In the SIL it was claimed that the articles imported in the cited entries were like the tin-plated containers in Headquarters Ruling (HQ) 965064, dated April 12, 2002, and that the proper classification for the containers is under subheading 7326.90.1000, HTSUSA, the provision for other articles of iron or steel, other, of tinplate.

The merchandise was invoiced and entered at time of importation under subheading 7326.90.8586, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), the provision for other articles of iron or steel, other, other. Seventeen of the 19 entries were liquidated between October 11, 2002, and December 27, 2002, as "no change liquidations". One entry dated December 10, 2001, was liquidated on November 28, 2003, and one entry dated January 23, 2002, was liquidated on January 16, 2004. Protestant filed the protest and request for AFR on June 18, 2003. As provided for in 19 U.S.C. 1514, (with certain exceptions not applicable in this matter) certain listed decisions (including the legality of all orders and findings entering into the same) of the Customs Service (now, Customs and Border Protection) are final and conclusive on all persons unless a protest is filed in accordance with section 1514, or unless a civil action contesting the denial of a protest, in whole or in part, is commenced in the United States Court of International Trade in accordance with chapter 169 of Title 28, United States Code.

Thus, a protest must be based on, or in response to, a decision made by CBP. Such decisions are: (1) the appraised value of merchandise; (2) the classification and rate and amount of duties chargeable; (3) all charges or exactions of whatever character within the jurisdiction of the Secretary of the Treasury; (4) the exclusion of merchandise from entry or delivery or a demand for redelivery to customs custody under any provision of the customs laws, except a determination appealable under [19 U.S.C. 1337]; (5) the liquidation or reliquidation of an entry, or reconciliation as to the issues contained therein, or any modification thereof; (6) the refusal to pay a claim for drawback; or (7) the refusal to reliquidate an entry under [19 U.S.C. 1520(c)]. 19 U.S.C. 1514.

The procedures for filing a protest of one of the above decisions are provided in 19 U.S.C. 1514(c). Section 1514(c)(3) provides that a protest of a decision, order, or finding described in section 1514(a) shall be filed with Customs within 90 days after but not before the notice of liquidation or reliquidation or the date of the decision as to which protest is made (if the notice of liquidation or reliquidation is inapplicable).

Customs Form 19 reflects that your office received the Protest on June 18, 2003. Pursuant to 19 CFR 174.12(f) "The date on which a protest is received by the Customs officer with whom it is required to be filed shall be deemed the date on which it is filed." Thus, the protest was filed on June 18, 2003. Seventeen of the 19 entries subject of the protest were liquidated on or before December 27, 2002, by far more than 90 days prior to the date of protest (June 18, 2003).

Accordingly, the protest of June 18, 2003, is untimely and the relief requested for all the entries with the exception of the entry dated December 10, 2001, which was liquidated on November 28, 2003, and the entry dated January 23, 2002, which was liquidated on January 16, 2004, is denied.

Our decision on the timely protests filed against the entry dated December 10, 2001, and the entry dated January 23, 2002, follows.

ISSUE:

Does AFR number 2304-03-100119 satisfy the criteria for further review under 19 CFR §§174.24 and 174.25?

LAW AND ANALYSIS:

Section 174.24 of the Customs Regulations (19 CFR §174.24) lists the criteria for granting an AFR. It states that an AFR will be granted when the decision against which the protest was filed:

Is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise;

Is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts;

Involves matters previously ruled upon by the Commissioner of Customs or his designee or by the Customs courts but facts are alleged or legal arguments presented which were not considered at the time of the original ruling; or

Is alleged to involve questions which the Headquarters Office, United States Customs Service, refused to consider in the form of a request for internal advice pursuant to §177.11(b)(5) of this chapter.

Additionally, Section 174.25(b)(3) of the Customs Regulations (19 CFR §174.25(b)(3) provides, in pertinent part, that an application for further review shall contain a statement of any facts or additional legal arguments, not part of the record, upon which the protesting party relies, including the criterion set forth in §174.24 which justifies further review.

The merchandise subject of this protest consists of articles described as "tin lunch boxes". Photographs of boxes, presumably of metal, with handles and hinged lids were submitted with the protest. The items were originally entered under subheading 7326.90.8586, HTSUSA, as other articles of iron or steel, other, other. Protestant claims that they are properly classified under subheading 7326.90.1000, HTSUSA, as other articles of iron or steel, other of tinplate. In support thereof protestant cites HQ 965063, dated April 12, 2002, wherein tinplated containers were classified under subheading 7326.90.1000, HTSUSA. The protest concerns an issue of fact. The articles are described as "tin". Tin is a metal classifiable in Chapter 80, HTS. "Tinplate" is defined as "thin sheet iron or steel coated with tin" (Merriam-Webster Dictionary) and as "thin steel sheet with a very thin coating of metallic tinprimarily used in can-making" (American Metal Market). No samples from the shipments were provided, nor was any information or evidence submitted to indicate or show that these containers were made of either tin or tinplate.

Under Section V of the instant Protest (“Justification of Further Review Under the Criteria in 19 CFR 174.24 and 174.25”), the protestant does not properly identify the issue and does not provide sufficient information to identify the issue and does not provide sufficient information or a sample to identify the composition of the metal. Thus no statement or evidence to substantiate that this protest involves facts or legal arguments which warrant further review by this office has been provided. Protestant has merely cited 19 CFR 174.24 as authority for further review in section III of the Protest (“Detailed Reasons for Protest and/or Further Review”). Protestant has completely failed to provide any justification for further review under the criteria set forth in 19 CRF 174.24 and 174.25 as required in Section III of the Protest.

Accordingly, we find that the protestant fails to meet the criteria of 19 CFR §174.24 and the justification requirements of 19 CFR §174.25(b)(3), and that further review of the AFR is not warranted.

HOLDING:

Protest number 2304-03-100119 does not meet the criteria for further review under 19 CFR §174.24 and 19 CFR §174.25. Accordingly, the AFR should not have been granted. We are returning the protest file to your office for appropriate action.

The protest should be in DENIED in full.

The protest of the denial of the SIL dated May 21, 2002, was filed on June 18, 2003, more than 90 days after all the entries, with the exception of the entry dated December 10, 2001, and the entry dated January 23, 2002, were liquidated. It is therefore untimely insofar as to those 17 entries, and the relief requested is denied.

Insofar as the protest and AFR filed against the entry dated December 10, 2001, and the entry dated January 23, 2002, is concerned, it does not not meet the criteria for further review under 19 CFR §174.24 and 19 CFR §174.25, and the relief requested is denied.

In accordance with Section IV of the Customs Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 22), you are to 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.

No later than 60 days from the date of this letter, the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and by other methods of public distribution.

Sincerely,

Myles B. Harmon, Director

Previous Ruling Next Ruling

See also: