Request to set aside denial of Protest No. 2704-06-100115; 19 U.S.C. 1515(d)

HQ H008520 April 12, 2007 CLA-2 OT:RR:CTF:TCM H008520 KSH CATEGORY: Classification TARIFF NO.: 3923.29.0000 Jonathan Fee, Esq. B.J. Shannon, Esq. Alston & Bird LLP 950 F Street N.W. Washington, D.C. 20004-1404 RE: Request to set aside denial of Protest No. 2704-06-100115; 19 U.S.C. 1515(d) Dear Mr. Fee and Ms. Shannon: This is in reply to your request of March 9, 2007, on behalf of your client, Imex Discovery Resources, Inc. (“Imex”), for Customs and Border Protection (“CBP”) to void the denial of Protest No. 2704-06-100115. The request was timely filed within 90 days after the date of the notice of denial.  FACTS: The protest at issue is against Customs and Border Protection’s (CBP) liquidations of one entry of merchandise in subheading 4202.92.4500 of the Harmonized Tariff Schedule of the United States (HTSUS) which provides for “Trunks, suitcases, vanity cases, attache cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, insulated food or beverage bags, toiletry bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes, powder cases, cutlery cases and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials or with paper: Other: With outer surface of sheeting of plastic or of textile materials: Travel, sports and similar bags: Other.” On January 21, 2005, the merchandise subject to the protest was entered in subheading 3923.29.0000, HTSUS, which provides for “articles for the conveyance or packing of goods, of plastics; stoppers, lids, caps and other closures, of plastics: Sacks and bags (including cones): Of other plastics”. The merchandise was liquidated on November 4, 2005 in subheading 4202.92.4500, HTSUS. Imex filed a protest on January 12, 2006, claiming that the entry should have been properly classified in subheading 3923.29.0000, HTSUS. The protest was timely filed pursuant to 19 U.S.C. 1514(c)(3). The protest was denied on January 16, 2007 on the basis of Headquarters Ruling (HQ) W968181, dated October 3, 2006. On March 9, 2007, Imex submitted a request to void denial of the protest pursuant to 19 U.S.C. 1515(d). In support of the request, Imex states that in accordance with HQ W968181, the merchandise at issue should have been classified in subheading 3923.29.0000, HTSUS. ISSUE: Whether the port denied the protest contrary to proper instructions. LAW AND ANALYSIS:Imex requested CBP void the denial of the protest number 2704-06-100115 pursuant to 19 U.S.C. 1515(d) which provides as follows: If a protest is timely and properly filed, but is denied contrary to proper instructions, the Customs Service may on its own initiative, or pursuant to a written request by the protesting party filed with the appropriate port director within 90 days after the date of the protest denial, void the denial of the protest. You claim that in accordance with HQ W968181, the entry at issue was to be classified in subheading 3923.29.0000, HTSUS. HQ W968181 involved the proper classification of various models of bags constructed from PVC sheeting, PPNW or a combination of the two. The bags are imported for a variety of products including bedding. As the composition, thickness and closure of the bags varied, they were grouped into four categories identified in the protest at issue in HQ W968181 as Sections “A”, “B” or “C”. Each section listed a series of part numbers to be grouped therein. The merchandise at issue was identified by Imex in the protest giving rise to the decision in HQ W968181, as part numbers LP1315-WF, LP1315-WT, LP1315-WQ and LP1315-WK. The aforementioned part numbers were grouped into Section “A”. Section “A” bags are less than 4mm thick and are constructed solely of PVC. Some have zipper closures, flap closures or no closures at all. They may also have pockets or handles. They are garment bags or bags that are cylindrically shaped or have rectangular sides in varying dimensions. In HQ W968181, CBP determined that merchandise falling in Section “A” was to be classified in subheading 3923.29.0000, HTSUS. The port denied the instant protest and liquidated the merchandise in subheading 4202.92.4500, HTSUS, contrary to CBP’s holding in HQ W968181 which classified the subject merchandise in subheading 3923.29.0000, HTSUS. Accordingly, the port denied the protest contrary to proper instructions. HOLDING: The port denied the instant protest and liquidated the merchandise in subheading 4202.92.4500, HTSUS, in contradiction to CBP’s holding in HQ W968181 which classified the merchandise in subheading 3923.29.0000, HTSUS. Accordingly, the Port Director denied the protest contrary to proper instructions. Your request to void the protest is granted. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division