Application for Further Review of Protest No 4601-10-100330; frozen desserts

HQ H104897 September 21, 2010 CLA-2- OT:RR:CTF:TCM H104897 DAC CATEGORY: Classification U.S. Customs and Border Protection Port Director Port of Newark 1100 Raymond Boulevard Newark, NJ 07102 Re: Application for Further Review of Protest No: 4601-10-100330; frozen desserts Dear Port Director: The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 4601-09-100330, filed on March 5, 2010, on behalf of protestant, Mehadrin Dairy Corp., (“Mehadrin”), against U.S. Customs and Border Protection’s (CBP) classification of two entries of frozen desserts, under the Harmonized Tariff Schedule of the United States (HTSUS). This protest covers two entries made on December 9, 2008, and January 6, 2009. Upon examination of the AFR, we are administratively closing this file and returning it for your disposition. Protestant has not identified a basis for granting further review as explained below. Protestant's request for further review may be disposed of summarily. The scope of review is limited to the administrative record. The Protestant’s initial protest did not contain any evidence to support their claim that the reclassification by CBP was improper. The Protestant also failed to provide the information required in a submission detailing and supporting their claims. Thus, there is no evidence in the record to support the Protestant’s claim that the reclassification of the merchandise was improper. Specifically, protestant has failed to provide the evidence that the merchandise contains ice cream in accordance with 21 CFR Part 135. See HQ 088914, dated May 9, 1991. To comply with the mandatory provisions of 19 U.S.C. § 1514(c)(1), a protest of a decision must set forth distinctly and specifically each decision as to which protest is made. See generally, United States v. Parksmith Corp., 62 C.C.P.A. 76, 514 F. 2d 1052, C.A.D. 1149 (1975); American Commerce Co. v. United States, 42 Cust. Ct. 98, 173 F. Supp. 812, C.D. 2072 (1959); United States v. E. H. Bailey & Co., 32 C.C.P.A. 89, C.A.D. 291 (1944). In addition, the CBP regulations require that a protest set forth "[t]he nature of, and justification for the objection set forth distinctly and specifically with respect to each category, payment, claim, decision, or refusal." 19 C.F.R. §174.13 (a) (6). See 19 U.S.C. § 1514(c). See also HQ 964766, dated November 21, 2001. Moreover, the Protestant has made an alleged claim of treatment by CBP. Section 177.12(c)(1) of the CBP Regulations (19 CFR 177.12(c)(1)) provides that the following rules will apply for purposes of determining whether a treatment was previously accorded by CBP to substantially identical transactions of a person: (i) There must be evidence to establish that: (A) There was an actual determination by a Customs officer regarding the facts and issues involved in the claimed treatment; (B) The Customs officer making the actual determination was responsible for the subject matter on which the determination was made; and (C) Over a 2-year period immediately preceding the claim of treatment, Customs consistently applied that determination on a national basis as reflected in liquidations of entries or reconciliations or other Customs actions with respect to all or substantially all of that person's Customs transactions involving materially identical facts and issues. Section 177(c)(ii) provides that the determination of whether the requisite treatment occurred will be made on a case-by-case basis and will involve an assessment of all relevant factors. In particular, CBP will focus on past transactions to determine whether there was an examination of the merchandise by CBP or the extent to which those transactions were reviewed by CBP. Diminished weight will be given to transactions involving small quantities or values, and no weight to informal entries or transactions processed without examination or CBP officer review. Section 177.12(c)(2)(iv) of the CBP Regulations, 19 CFR 177.12(c)(iv)), provides that "(t)he evidentiary burden as regards the existence of the previous treatment is on the person claiming the treatment." Section 177.12(c)(iv), further states the following:  The evidence of previous treatment by Customs must include a list of all materially identical transactions by entry number (or other Customs assigned number), the quantity and value of merchandise covered by each transaction (where applicable), the ports of entry, the dates of final action by Customs, and, if known, the name and location of the Customs officer who made the determination on which the claimed treatment is based. In addition, in cases in which an entry is liquidated without any Customs review (for example, the entry is liquidated automatically as entered), the person claiming a previous treatment must be prepared to submit to Customs written or other appropriate evidence of the earlier actual determination of a Customs officer that the person relied on in preparing the entry and that is consistent with the liquidation of the entry. The information protestant has provided up to this point does not substantiate that it is entitled to a treatment. We note that protestant has not identified any entry numbers, ports of entry, dates of final action by CBP, and, if known, the name and location of the CBP officer who made the determination on which the claimed treatment is based and no basis, other than your statement, upon which to verify that the merchandise was identical to that for which a treatment is claimed. We have not been provided with any of the information required by the above section. In addition, protestant has not alleged or provided any evidence that any of the entries were examined by CBP, or that CBP import specialists received samples of the merchandise or entry documents prior to release of that merchandise, and that entries were liquidated in the provision for which treatment is sought. In sum, protestant has not met the evidentiary burden required to substantiate the existence of a treatment claim. The alleged claim of treatment is unsubstantiated and should be denied. See 19 CFR § 177.12(c). 19 U.S.C. § 1625(c). See also HQ 967074, dated July 14, 2004. Further review will be accorded to a party filing an AFR that meets the requirements of section 174.25 and one of the criteria in section 174.24. In this case, the Protestant does not cite or otherwise reference a claim that satisfies any of these criteria on either the CBP Form 19 or the accompanying attachment. Consequently, the criteria for further review have not been met and therefore, we are returning the Protest to you for your disposition. If you have any questions regarding the foregoing, please call Dean Cantalupo, of my staff, at (202) 325-0085. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division