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HQ 229191





November 2, 2001

PRO-2-02, PRO-2-05 RR:CR:DR 229191 RDC
CLA-2-42

CATEGORY: PROTEST

Port Director of Customs
2nd and Chestnut Streets
Philadelphia, PA 19106
Attn: Henry Carr

RE: Protest number 1101-01-100056; Request for Further Review of Protest; 2007.99.05, HTSUSA; Chambord red raspberry preserves; 9903.02.46, HTSUSA; retaliatory duties; arbitrary and capricious; HQ 964764.

Dear Sir or Madam:

Protest number 1101-01-100056 was forwarded to this office for further review. We have considered the evidence provided and the points raised by your office and the protestant. Our decision follows.

FACTS:

The Protestant, Charles Jacquin Et Cie., Inc. (“Jacquin”) is the importer of record for entry number xxxx031-2 consisting of what merchandise described on the protest form as Chambord red raspberry preserves from France. According to the entry summary the merchandise is described as Lingonberry / raspberry jam and classified at 2007.99.05 (Harmonized Tariff Schedule of the United States, HTSUSA). Ordinarily, the raspberry jam would be classified under 2007.99.05, HTSUSA. However, subheading 9903.02.46, HTSUSA, requires that all goods from the European Union (EU) that are provided for in 2007.99.05, HTSUSA, are subject to a 100 percent duty. Accordingly, Customs reclassified the goods under 9903.02.46, HTSUSA, and rate advanced the goods.

The Protestant does not challenge the classification of the goods nor the enforcement of the law by the Customs Service but states,
the importer protests the imposition of the 100% duties for the following tariff numbers: 2007.99.0500. The importer states that the imposition of these 100% duties for retaliatory purposes is both capricious and arbitrary and that the rates of duty in the
normal trade relations column (column 1, general) should be used.

ISSUE:

Are the retaliatory duties levied by the United States against raspberry jam from the European Union arbitrary and capricious?

LAW AND ANALYSIS:

Section 1514 of 19 USC provides that, with exceptions not applicable to Protestant’s contentions,
decisions of the Customs Service, including the legality of all orders and findings entering into the same, as to [inter alia] – (2) the classification and rate and amount of duties chargeable; . . . shall be final and conclusive upon all persons (including the United States and any officer thereof) unless a protest is filed in accordance with this section, or unless a civil action contesting the denial of a protest, in whole or in part, is commenced in the United States Court of International Trade . . . .

19 USC § 1514(a)(2). Therefore, since Jacquin protests “the imposition of the 100 % duties” the issue raised in the protest is a protestable matter per 19 USC § 1514(a)(2).

We note that per § 1514(c)(2)(A) Jacquin, as the importer on the entry summary may file this Protest. Further, we note that per § 1514(c)(3) which states,

[a] protest of a decision, order, or finding described in subsection (a) of this section shall be filed with the Customs Service within ninety days after but not before – (A) notice of liquidation or reliquidation, . . . .

Thus, the Protest is timely filed. The entry at issue was liquidated on October 6, 2000, and the instant Protest was filed December 29, 2000 – within the 90 days required.

The Protestant alleges that its Protest “involves questions of law or fact which have not yet been ruled upon by the Commissioner of Customs or his designee or by the Customs Courts” per 19 C.F.R. § 174.24(b). Further review will be accorded to the party filing an application for further review which meets the requirements of § 174.25 and at least one of the criterion in §174.24. The Philadelphia Port has approved the Application for Further Review. However, this office does not agree. The identical issue was addressed for different merchandise in HQ 964764 (copy attached). Therefore, the instant Protest does not meet the criteria in 19 C.F.R. § 174.24(b) for Further Review.

However, since the identical issue was addressed for different merchandise in HQ 964764 its law and holding will be reiterated here. The Protestant raises as its sole contention that imposition of the 100 percent duty on the jam is “arbitrary and capricious.” Likewise, the importer in HQ 964764 protested the imposition of 100 % duty on pillow shams, stating 100 % duties for retaliatory purposes was both capricious and arbitrary.

The imposition of 100 percent retaliatory duty on the raspberry jam arises from a dispute between the European Union (EU) and the United States over the EU’s ban on imports of U.S. beef from animals treated with hormones. In that case, the authority to impose retaliatory duties was delegated to the USTR in the Trade Act of 1974 (Trade Act) (19 U.S.C. § 2101 et. Seq.) Upon finding that the EU was in violation of the provisions of the WTO, the USTR was required by law to take retaliatory actions. The actions taken by the USTR - the imposition of retaliatory duties - was fully authorized by Congress in the Trade Act.

HOLDING:

Imposition of 100 percent rate of duty on the red raspberry preserves from France was in accordance with law and regulations. The protest should be DENIED IN FULL.

Consistent with the decision set forth above, you are hereby directed to deny the subject protest. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office 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 Regulations and Rulings will take steps to make the decision available to customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division


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