HQ H264880
OT:RR:CTF:VS H264880 YAG
Port Director
U.S. Customs and Border Protection
Port of Houston
7141 Office City Drive
Houston, TX 77087
RE: Application for Further Review (“AFR”) of Protest 5309-15-100001; Classification of Spent Carbon Fines Containing Gold; Generalized System of Preferences
Dear Port Director:
This is in response to your correspondence, forwarding the Application for Further Review (“AFR”) of Protest 5309-15-100001, dated January 7, 2015, timely filed by IAMGOLD Purchasing Services, Inc. (“Protestant”).
FACTS:
The subject imported merchandise is known as gold-saturated carbon fines. These carbon fines containing gold were imported directly from Suriname and were the result of a gold extracting process called “carbon-in-leach” (“CIL”).
The merchandise at issue was entered on August 30, 2013. Protestant entered the merchandise under subheading 7112.91.00, Harmonized Tariff Schedule of the United States (“HTSUS”), a duty free provision. The entry was liquidated on July 11, 2014. On January 7, 2015, Protestant filed a protest against the tariff classification of the merchandise in subheading 7112.91.00, HTSUS, claiming that the imported merchandise should have been entered under subheading 7108.12.50, HTSUS, eligible for the Generalized System of Preferences (“GSP”), in accordance with Headquarters Ruling Letter (“HRL”) H219217, dated August 13, 2013. Protestant also states that the Port of Houston previously processed a Post-Entry Amendment (“PEA”) granting liquidation of another entry under subheading 7108.12.50, HTSUS, with the GSP special indicator “A.” That entry involved the same merchandise as is involved in the currently protested entry. The Port states that Protestant has not tendered duties to CBP, which are due if the imported merchandise is classified under subheading 7108.12.50, HTSUS, as the GSP has expired.
ISSUES:
Whether the subject merchandise is classified under subheading 7108.12.50, HTSUS.
Whether Protestant may claim preferential tariff treatment under the GSP by filing a protest under 19 U.S.C. §1514(a).
LAW AND ANALYSIS:
With respect to the classification issue, the matter is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification. This protest was timely filed on January 7, 2015, within 180 days of liquidation of the entry on July 11, 2014. (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)(2006)). Further Review of Protest No. 5309-15-100001 was properly accorded to Protestant pursuant to 19 CFR §174.24(a) because 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.”
In HRL H219217, issued to Protestant, CBP determined that gold-saturated carbon fines were classified under subheading 7108.12.50, HTSUS, as “Gold (including gold plated with platinum) unwrought or in semi-manufactured forms, or in powder form: Nonmonetary: Other unwrought forms: Other,” with a duty rate of 4.1 percent ad valorem. Furthermore, based on the facts described in HRL H219217 and in granting Protest No. 5309-12-100006, CBP found that the imported carbon fines satisfied the requirements of the GSP. However, it was also noted that it is within the Port’s authority to request documentation to verify any future GSP claims made by the importer. Since the protest in question also involves identical merchandise imported by the same party, we find that the imported gold-saturated carbon fines should be classified under subheading 7108.12.50, HTSUS, with a duty rate of 4.1 percent, as discussed in HRL H219217.
Nevertheless, with respect to the GSP claim in question, this issue is not protestable under 19 U.S.C. §1514. Please note that the legal authorization of the GSP program expired on July 31, 2013. We note that the imported merchandise in question was entered on August 30, 2013, a month after the GSP program expired. Subsequent to the filing of this protest, on June 25, 2015, the House passed the Trade Preferences Extension Act (the “Act”) of 2015 following Senate approval on June 24, 2015, reauthorizing GSP through December 31, 2017. The President signed the bill into law on June 29, 2015. As provided in the Act, duty-free treatment of GSP-eligible imports will become effective 30 days after enactment on July 29, 2015. The Act authorizes CBP to disregard liquidation status in determining GSP eligibility and consequent refunds, and specifies that the importers will have 180 days after the date of the enactment of the GSP renewal act to resubmit their entry for refund consideration. However, at this time Protestant is not eligible to claim GSP, and any GSP post-importation claims and related GSP protest claims should be denied.
HOLDING:
Based on the facts described above, the imported carbon fines should be classified in subheading 7108.12.50, HTSUS, with a duty rate of 4.1 percent, in accordance with CBP’s decision in HRL H219217. However, Protestant’s GSP post-importation preference claim was properly denied by the Port. Therefore, Protest No. 5309-15-100001 is denied, in part, and granted, in part.
In accordance with the Protest/Petition Processing Handbook (CIS HB December 2007), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any re-liquidation of the entry or entries in accordance with the decision should be accomplished prior to mailing of this decision. Sixty days from the date of this 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 & Trade Facilitation Division