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HQ 967913




October 31, 2005

CLA-2 RR:CTF:TCM 967913 TMF

CATEGORY: CLASSIFICATION

TARIFF NO.: 2402.20.8000

Port Director
Customs and Border Protection
6601 NW 25th Street
Room 272
Miami, FL 33122

RE: Classification of Optiva Puritos; Application for Further Review; Protest 5201-03-100394

Dear Port Director:

This is in reply to your correspondence forwarding Application for Further Review of Protest (AFR) 5201-03-100394, filed by the law firm of Barry Boren on behalf of Smithfield Distributors, Inc.

FACTS:

The protest and Application for Further Review (hereinafter “AFR”), which was timely filed on August 6, 2003, is against Customs and Border Protection’s (CBP) liquidation on May 9, 2003 of certain Optiva Puritos KS Box 12M in subheading 2402.20.8000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for “Cigars, cheroots, cigarillos and cigarettes, of tobacco or of tobacco substitutes: Cigarettes containing tobacco: Other: Paper-wrapped.”

The subject merchandise was entered on March 14, 2002. Upon liquidation, CBP determined that the goods were dutiable at $1.05 kg + 2.3 percent ad valorem, subject to Federal Excise Tax at a rate of $19.50 per thousand.

The protestant claims that the subject merchandise is classifiable in subheading 2402.10.3030, HTSUSA, which provides for “Cigars, cheroots, cigarillos and cigarettes, of tobacco or of tobacco substitutes: Cigars, cheroots and cigarillos, containing tobacco: Each valued less than 15 cents...Small cigars, cheroots and cigarillos (weighing not more than 1.36 kg/1000).” The assessed duty rate in 2002 was $1.89/kg + 4.7 percent ad valorem, subject to Federal Excise Tax (26 U.S.C. § 5701).

ISSUE:

Whether the Application for Further Review of Protest 5201-03-100394 meets the requirements for further review by Headquarters pursuant to 19 C.F.R. § 174.24 and 174.25.

LAW AND ANALYSIS:

The criteria required for the granting of a request for further review are set forth in 19 C.F.R. §174.24 and 174.25 of the Customs Regulations. Section 174.24 states, in pertinent part, that further review of a protest which otherwise would be denied by the Port Director will be accorded to a party filing an application for further review which meets the requirements of §174.25 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.

Before this office can consider the merits of the protest, counsel for the protestant must sufficiently establish a basis for AFR. However, upon reviewing this protest to determine whether AFR is warranted, we find that counsel has not established a basis for AFR within the purview of sections 174.24 and 174.25.

First, although counsel states that the subject merchandise is identical to the merchandise set forth in two New York rulings, identified by counsel as “182041 [sic], dated June 27, 2002” and “688260 [sic], dated July 31, 1997” (NY I82041 and NY B88260, respectively), these rulings pertain to marking requirements of small cigar and cigarillo packs, not their classification. The protested issue in this case is the classification of the merchandise, not their marking. Thus, we find that counsel has not met the threshold requirements outlined in 174.24 for establishing justification for further review.

Second, although counsel states that further review is warranted on the basis that the subject entry involves questions of law or facts which have not been ruled upon by the Commissioner of Customs (19 C.F.R. § 174.24(b)), counsel has not proffered any legal arguments to support this fact. Rather, counsel merely recites the regulation without a substantive legal argument for why AFR is warranted pursuant to section 174.24(b).

Consequently, counsel for the protestant has not established that the Port’s action is inconsistent with any prior CBP rulings, that the protest involves any questions of law or fact that have not been ruled upon by CBP, nor that the protest involves any questions which the Headquarters Office has refused to consider in the form of a request for internal advice.

HOLDING:

We find that the Protest fails to meet the criteria of 19 C.F.R. 174.24 and 174.25. Therefore, the Protestant’s request for further review should not have been granted. The protest file is being returned for appropriate action by your office.

Sincerely,

Myles B. Harmon, Director
Commerce and Trade Facilitation Division

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