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HQ 967401




November 19, 2004

CLA-2-2-05-RR:CR:GC
967401 IOR

Kenneth G. Weigel, Esq.
Alston & Bird LLP
601 Pennsylvania Ave., NW
North Building, 10th Floor
Washington DC 20004-2601

RE: Review of denial of Application for Further Review of Protest No. 4601-04-101862; 19 U.S.C. §1515(c)

Dear Mr. Weigel:

This is in response to your letter of November 1, on behalf of Tetra Pak, Inc., requesting that we set aside the denial of the application for further review (“AFR”) of the protest.

The request for review is pursuant to the authority of 19 U.S.C. §1515(c) which provides, in pertinent part, as follows:

If a protesting party believes that an application for further review was erroneously or improperly denied or was denied without authority for such action, it may file with the Commissioner of Customs a written request that the denial of the application for further review be set aside. The Commissioner of Customs may review such request and, based solely on the information before the Customs Service at the time the application for further review was denied, may set aside the denial of the application for further review and void the denial of protest, if appropriate.

According to Customs and Border Protection (“CBP”) records, the subject protest was timely filed on August 27, 2004 on behalf of the importer of the subject merchandise. The protest concerns three entries of automated batch retort machines. The merchandise was liquidated in June, 2004, under subheading 8419.89.9585, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “[m]achinery, plant or laboratory equipmentfor the treatment of materials by a process involving a change of temperature: Other machinery, plant or equipment: Other: Other: Other: For other materials.” The subject protest was filed on August 27, 2004, asserting that the merchandise should be classified in subheading 8419.81.9080, HTSUS, which provides for “[m]achinery, plant or laboratory equipmentfor the treatment of materials by a process involving a change of temperature: Other machinery, plant or equipment: For making hot drinks or for cooking or heating food: Other: Other.”

The protest includes an AFR, in support of which it is stated that further review is justified under 19 CFR 174.24(a) “because Customs’ liquidation of the subject merchandise is inconsistent with advice provided by Customs to the exporter as to the classification of these machines.” This statement is further explained in the attachment to the protest as follows:

Customs’ advice to other importers of these retort machines also supports this classification. Tetra Pak purchases retort machines from FMC Technologies, N.V. (“FMC”). Previously, we understand that Customs questioned another importer of a similar FMC retort machine about the machine’s classification. After the importer sent copies of sales brochure and technical specifications to Customs, Customs agreed that the retort machines are properly classified under 8419.81.

An AFR is provided for by 19 U.S.C. §1515(a), which provides that upon a timely request by the protesting party, "a protest may be subject to further review by another appropriate customs officer, under the circumstances and in the form and manner that may be prescribed by the Secretary in regulations...." The applicable regulations are 19 CFR 174.23 through 174.26. The criteria for further review of a protest are set forth in 19 CFR 174.24, and require that further review be accorded when the decision against which the protest was filed:

(a) 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;

(b) 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;

(c) 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

(d) 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.

The AFR was denied by CBP on October 8, 2004, for failure to meet the criteria for AFR. The protest was also denied in full on the basis of New York Ruling letter, NY 83873, dated May 7, 2003.

The subject AFR asserts that the classification of the entered retort machines is inconsistent with the “advice” or “agreement” received by an unidentified party, at an unidentified CBP port from an unidentified person, persons, or office with CBP. It is not asserted that the “advice” or “agreement” is a decision made at a port. Without more information, we cannot determine whether the “advice” or “agreement” is a decision within the meaning of 19 CFR 174.24(a), therefore there is no basis upon which to conclude that the AFR meets the criteria in 19 CFR 174.24. The assertion made in this case under section 174.24(a) is no different from an assertion that a protested decision is inconsistent with a ruling issued by CBP, with a failure to identify any ruling. None of the other criteria in section 174.24 are alleged.

In your November 1, 2004 letter, you assert that NY 83873 describes a different machine, and that the ruling does not preclude an AFR based on the criteria in 19 CFR 174.24 (b) and (c). You further allege the criteria in section 174.24(b) and (c). However, 19 U.S.C. §1515(c) specifically provides that a review of a denial of an AFR may be based “solely on the information before the Customs Service at the time the application for further review was denied.” Therefore we are precluded from taking into account the new assertions made in the November 1, 2004 request.

We conclude that the AFR did not meet the criteria set forth in 19 CFR 174.24, the AFR was not erroneously or improperly denied and accordingly we deny your request to set aside the denial of the AFR.

By copy of this letter, the Port Director is being notified of this action. Please note that under 19 U.S.C. §1515(c), “[a]ll denials of protests are effective from the date of original denial for purposes of section 2636 of Title 28.

Sincerely,

Myles B. Harmon, Director

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