Application for Further Review of Protest No. 3004-06-100033; Fruit Energy Bulk Bars; Flat Fruit

HQ H008632 September 17, 2008 CLA-2 OT:RR:CTF:TCM H008632 IDL CATEGORY: Classification Assistant Area Port Director U.S. Customs and Border Protection 9901 Pacific Highway Blaine, Washington 98230 Re: Application for Further Review of Protest No. 3004-06-100033; Fruit Energy Bulk Bars; Flat Fruit Dear Sir: This is our decision regarding the Application for Further Review (“AFR”) of Protest No. 3004-06-100033, timely filed by UPS Supply Chain Solutions, Inc. (“UPS”) on behalf of Tree Top, Inc. (“protestant”), against Customs and Border Protection’s (CBP’s) classification of “fruit energy bulk bars” and “flat fruit”, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). FACTS: The subject merchandise is described in an accompanying invoice as “14-gram flat fruit” in “strawberry”, “raspberry”, “cherry”, and “grape” flavors, and “37- gram fruit energy bulk bars” in “citrus”, “tropical plus”, “wildberry plus”, and “cherry berry” flavors. They are manufactured by Sun-Rype Products, Ltd. The Quality Assurance Supervisor of Sun-Rype Products, Ltd. provided a letter, dated May 16, 2006, to Tree Top, Inc., stating that the subject products are packaged in a “flexible multi-layer material specifically designed to provide barrier properties against water and air. Packages are not hermetically sealed but in practical terms can be considered airtight.” A CBP laboratory analyzed a sample of the flat fruit (Report No. SF20061285, dated January 22, 2007), but was unable to reliably determine whether the packages were airtight. ISSUE: Whether the port properly classified and liquidated the subject merchandise? LAW AND ANALYSIS: Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a)(2) as a decision on the classification and rate and amount of duties chargeable. The protest was timely filed within 180 days of liquidation of the entries. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2007)). CBP properly approved the Application for Further Review, as the protestant, alleging that the port’s decision is inconsistent with New York Ruling Letter (NY) L81447, dated December 22, 2004, has met the requirements of 19 CFR § 174.24(a) and § 174.25. On December 20, 2004, the protestant entered the flat fruit and fruit energy bulk bars, imported from Canada, under subheading 2008.92.9094, HTSUSA, as: “Fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or sprit, not elsewhere specified or included: Other, including mixtures other than those of subheading 2008.19: Mixtures: Other: Other: Other”, with a claim for duty-free entry under the North American Free Trade Agreement (NAFTA). On November 1, 2005, CBP issued a Notice of Action (CBP Form 29), advising that an increase in duties had been assessed and the claim for NAFTA preferential treatment was denied. On November 18, 2005, CBP liquidated the entry under subheading 2008.92.9094, HTSUSA. On May 16, 2006, UPS filed the subject protest, asserting that the bars composed of a single fruit—apples—should have been classified under subheading 2008.99.0500, HTSUSA, as: “Fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included: Other, including mixtures other than those of subheading 2008.19: Other: Apples”, and the bars composed of a mixture of fruits should have been classified under subheading 2008.92.1040, HTSUSA, as: “Fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included: Other, including mixtures other than those of subheading 2008.19: Mixtures: In airtight containers and not containing apricots, citrus fruits, peaches or pears, Other”. Merchandise is classifiable under the HTSUSA in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUSA is such that most goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. The 2005 HTSUSA provisions under consideration are as follows: 2008 Fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included: Other, including mixtures other than those of subheading 2008.19: * * * 2008.92 Mixtures: In airtight containers and not containing apricots, citrus fruits, peaches or pears * * * Other….. Other * * * Other: * * * Other….. * * * Other: 2008.99.0500 Apples….. The protestant, relying on the decision in NY L81447, has asserted that the bars composed of a single fruit—apples—should have been classified under subheading 2008.99.0500, HTSUSA, and that the bars composed of a mixture of fruits should have been classified under subheading 2008.92.1040, HTSUSA. Sun-Rype Products, Ltd. was also the manufacturer of the fruit bar products that were the subject of NY L81447. The products in that ruling were described as: [F]lat, rectangular-shaped snackfoods measuring 4 x 1.5 x 1/8 inches. All contain apple puree concentrate, apple juice concentrate, citrus pectin, natural flavor, ascorbic acid, and lemon juice concentrate. Depending upon flavor the fruit bars may contain cherry juice concentrate, wildberry concentrate, elderberry juice concentrate, pineapple juice concentrate, orange juice concentrate, strawberry puree concentrate, grape puree concentrate, grape juice concentrate, and raspberry puree concentrate. The ingredients are mixed, sterilized, and extruded onto a drying/cooling belt. The dried product is cut and packaged for retail sale in laminated plastic sleeves containing from 0.5 to 1.42 ounces, net weight. Although the merchandise in NY L81447 and the subject merchandise were both manufactured by Sun-Rype Products, Ltd., it is not clear whether they are one and the same, due to the limited product information available to us. Protests against a decision of the appropriate CBP Officer must be in conformity with applicable statutory and regulatory requirements. Under 19 U.S.C. 1514(c)(1), a protest of a decision under subsection (a) of section 1514 must set forth distinctly and specifically each decision as to which protest is made. See, United States v. E.H. Bailey & Co., 32 CCPA 89, C.A.D. 291 (1945), United States v. Parksmith Corp., 514 F. 2d 1052, 62 CCPA 76 (1975), and related cases. Further, the CBP regulations require that a protest set forth a specific description of the merchandise affected by the decision as to which protest is made. 19 U.S.C. § 1514 and section 174.13(a)(5), CBP regulations (19 CFR § 174.13(a)(5)). The scope of review in a protest filed under 19 U.S.C. § 1514 is limited to the administrative record. CBP will consider all relevant allegations that are supported by competent evidence. In acting on a protest, however, CBP lacks the legal authority to assume facts and arguments that are not presented and, therefore, not in the official record. See HQ W967259, dated February 28, 2006. In the instant protest, the protestant has failed to provide information with regard to the ingredient composition of the subject merchandise. Though the protestant relies on NY L81447 in support of its position, we note that the ingredient composition of the merchandise under protest has not been provided. Due to the lack of factual specificity for the subject merchandise, we are unable to determine its classification, and must deny the protest. See 19 CFR 174.13(a)(5). The port should liquidate the entry on the basis of the best information available to it. HOLDING: Based on the protestant’s failure to comply with the requirements of 19 U.S.C. § 1514 and 19 CFR § 174.13(a)(5), the protest should be DENIED. In accordance with the Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), 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 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 International Trade 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 other methods of public distribution. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division