CLA-2: RR:CTF:TCM 967979 RSD
Port Director
U.S. Customs and Border Protection
112 West Stutsman
Pembina, North Dakota 58271
RE: Application for Further Review of Protest 3401-05-100027
Dear Port Director: This is in reply to your correspondence forwarding Application for Further Review of Protest (AFR) 3401-05-100027, filed by UPS Supply Chain Solutions, Inc. on behalf of its client, GE Oil & Gas Operations, LLC (hereinafter GE).
The protest under review concerns U.S. Customs and Border Protection’s (CBP) classification of a gas compressor assembly under subheading 8414.80.90, Harmonized Tariff Schedule of the United States (HTSUS). On August 15, 2004, the protestant entered the merchandise subject to this protest in subheading 8414.80.90, HTSUS, which provides for other compressors, other, other, with a 3.7% duty rate. 0n July 1, 2005, the subject
entry was liquidated in subheading 8414.80.90, HTSUS.
On September 6, 2005, protestant filed this protest and application for further review against the Port Director’s decision. Protestant claims that the subject merchandise is classified in subheading 8414.90.41, HTSUS, which provides for other parts of compressors. Protestant’s AFR request was approved. The protest was timely filed pursuant to 19 U.S.C. 1514 (c)(3) and 19 C.F.R. 174.12 (e)(1).
FACTS:
In its submission, GE describes the compressor assembly as a complete crank case assembly, which consists of a crankcase, crankshaft bearings, connect rods, and other components. GE further states that the compressor assembly is the main component for the compressor. It is used as the frame to mount gas compression cylinders for a reciprocating gas compressor. This assembly was brought into the U.S. and installed into the final skid that included a generator. It was then shipped to the end customer. No additional manufacturing was required in order for this assembly to function as a compressor.
ISSUE:
Does AFR 3401-05-100027 satisfy the criteria for further review under 19 CFR §§174.24 and 174.25?
LAW AND ANALYSIS: Section 174.24 of the Customs and Border Protection (CBP) Regulations (19 CFR §174.24) lists the criteria for granting an AFR. It states that an AFR will be granted when the decision against which the protest was filed:
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;
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;
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
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.
Additionally, Section 174.25(b)(3) of the CBP Regulations (19 CFR §174.25(b)(3)) provides, in pertinent part, that an application for further review shall contain a statement of any facts or additional legal arguments, not part of the record, upon which the protesting party relies, including the criterion set forth in §174.24 which justifies further review.
Under Section V of the instant Protest (“Justification of Further Review Under the Criteria in 19 CFR 174.24 and 174.25”), the protestant does not provide any statement or evidence to substantiate that this protest involves facts or legal arguments that warrant further review by this office. Protestant has failed to complete Section V of the Protest in which justification for further review under the criteria set forth in 19 CFR 174.24 and 174.25 is required. Accordingly, we find that the protest fails to meet the criteria of 19 CFR §174.24 and the justification requirements of 19 CFR §174.25(b)(3), and that further review of the AFR is not warranted.
For your consideration, we note that based on the information the protestant has presented, we believe that the applicable subheading for the subject compressor assembly is subheading 8414.80.20, HTSUS, which provides for other compressors.
HOLDING:
Protest number 3401-05-100027 does not meet the criteria for further review under 19 CFR §174.24 and 19 CFR §174.25. Accordingly, the AFR should not have been granted. We are returning the protest file to your office for consideration of the above comments and appropriate action.
In accordance with the Protest/Petition Processing Handbook, (CIS HB, January 2002, pp. 18 and 21), 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 the decision. Sixty days from the date of the decision the Office of Regulations and Rulings 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