CLA-2: RR:CTF:TCM 967880 KSH
Roger McCrary, Esq.
Bayer Corporate and Business Services LLC
100 Bayer Road Bldg. 5
Pittsburgh, PA 15205
RE: Request to set aside denial of Protest No. 1601-05-100101; 19 U.S.C. 1515(d)
Dear Mr. McCrary: This is in reply to your request of June 10, 2005, on behalf of Bayer Chemicals Corporation (Bayer), for Customs and Border Protection (“CBP”) to void the denial of Protest No. 1601-05-100101. 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 2924.29.7100 of the Harmonized Tariff Schedule of the United States (HTSUS).
The broker entered the merchandise subject to the protest in subheading 2924.29.7100, HTSUS, on February 13, 2004. The merchandise was liquidated as entered on January 3, 2005.
On March 3, 2005, Bayer filed a post summary adjustment to correct the entry summary to reflect classification of the merchandise in subheading 9817.29.01, HTSUS. On March 2, 2005, you filed proof of use for the entry pursuant to 19 C.F.R. 10.138.
Bayer filed a protest on March 9, 2005, claiming a clerical error resulted in an erroneous classification of the material in subheading 2924.29.7100. You further claimed that the entry should have been properly classified in subheading 9817.29.0100, HTSUS, which would render the entry eligible for duty free treatment. The protests were timely filed pursuant to 19 U.S.C. 1514(c)(3) and 19 C.F.R. 174.12(e)(1). The protest was denied on May 2, 2005, for failure to declare intent at the time of entry pursuant to 19 C.F.R. 10.134.
On June 10, 2005, you submitted a request to void denial of the protest pursuant to 19 U.S.C. 1515(d). In support of your request you attached a copy of Bayer’s broker instructions which requested classification in subheading 9817.29.01, HTSUS. You state that Bayer did not receive the entry packet until after the summary date. As such you state that Bayer did not file the completed actual use documentation until Bayer was able to provide it on March 2, 2005.
ISSUE: Whether the port denied the protest contrary to proper instructions.
LAW AND ANALYSIS: You have requested CBP void the denial of the protest number 1601-05-100101
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 the entry should have been classified in subheading 9817.29.0100,
HTSUS. CBP Regulations 10.131 through 10.139, (19 C.F.R. 10.131 through 10.139),
provide the requirements which must be met when the rate of duty is dependent upon
the actual use of the article being imported. CBP Regulations 10.133, 19 C.F.R.
10.133, states three conditions which must be met to receive duty preferences for actual
use. The three conditions are: (1) Such use is intended at the time of importation. (2) The article is so used. (3) Proof of use is furnished within three years after the date the article is entered or withdrawn from warehouse for consumption.
The intention of use at the time of importation must be evidenced by a declaration of
intent that is filed with the entry for consumption or for warehouse, or by entering the
proper actual use subheading of the HTSUSA on the entry form. CBP Regulation
10.134, 19 C.F.R. 10.134. Only when a declaration of intent has been made in
accordance with CBP Regulation 10.134 may the liquidation of an entry be suspended
until proof of use is furnished. See CBP Regulation 10.136, 19 C.F.R. 10.136.
Pursuant to 19 C.F.R. 10.133 and 10.134, a showing of intent of the actual use of the merchandise must be made by filing a declaration as to the intended use of the merchandise at the time of importation. Although you had filed a post summary adjustment to correct the claimed clerical error, it was not filed until after the entry had liquidated. Bayer’s broker’s failure to follow your instructions does not amount to an improper denial by the port. As previously stated, the declaration of intent must be filed at the time of entry.
HOLDING:
The declaration of intent was not filed at the time of entry in accordance with 19 C.F.R. 10.133 and 10.134. Accordingly, the Port Director properly denied your protest. Your request to void the protest is denied.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division