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May 20, 2010
CLA-2 OT:RR:CTF:TCM H032676 MG
TARIFF NO.: 0206.30.00
237 West Service Road
Trade Compliance Division
Champlain, NY 12919
RE: Application for Further Review of Protest no. 1712-08-100097; Inedible Pork Skins from Canada
Dear Port Director:
This is our decision regarding the Application for Further Review (“AFR”) of Protest Number 1712-08-100097, timely filed by Joel K. Simon, on behalf of Double “G” Company (“Double G”), concerning the classification of inedible pork skins from Canada under the Harmonized Tariff Schedule of the United States (“HTSUS”).
In reaching our decision we have taken into consideration arguments made by counsel in the memorandum in support of protest and application for further review, dated April 30, 2008, as well as supplemental submissions, dated March 1, 2010 and April 1, 2010.
According to the submitted information, Double G is an importer of pork skins from Canada. The goods in question are described as refrigerated fresh pork skins containing hair and hair roots. The entry documentation describes the merchandise as 43,403 pounds of fresh pork skins for gelatin manufacturing, packaged in 24 combos. Protestant states that after importation, these pork skins are subject to further processing in the manufacture of gelatin for pill capsules and paintballs in the United States.
The merchandise at issue was entered on August 30, 2007, as inedible pork skins with hair and hair roots, under subheading 4103.30.20, HTSUS, which provides for: “Other raw hides and skins (fresh, or salted, dried, limed, pickled or otherwise preserved, but not tanned, parchment-dressed or further prepared), whether or not dehaired or split, other than those excluded by note 1(b) or 1(c) to this chapter: Of swine: Other.” On November 2, 2007, CBP liquidated the entry under 0206.30.00, HTSUS, which provides for: “Edible offal of bovine animals, swine, sheep, goats, horses, asses, mules or hinnies, fresh, chilled or frozen: Of swine, fresh or chilled.”
Whether Double G’s pork skins are classified in 0206, HTSUS, as edible offal of swine or heading 4103, HTSUS, as other raw hides and skins of swine.
LAW AND ANALYSIS:
Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification. The protest was timely filed on April 30, 2008, within 180 days of liquidation. (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. 1712-08-100097 was properly accorded to protestant pursuant to 19 C.F.R. § 174.24 because the decision against which the protest was filed involves matters previously not ruled upon by the Commissioner of Customs or his designee or by the Customs courts.
Classification of goods under the HTSUS is governed by the GRI. GRI 1 provides that classification shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied.
The following 2007 HTSUS provisions under consideration are as follows:
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the headings. It is Customs and Border Protection (CBP) practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See, T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The General Explanatory Note to Chapter 2 indicates, in pertinent part, that:
This Chapter applies to … meat offal … of all animals … suitable for human consumption.
This EN further states, in pertinent part, that:
Offal generally can be grouped in four categories:
* * *
(4)That, such as skins, which can be used for human consumption or for other purposes (e.g., manufacture of leather). [Emphasis provided].
* * *
The offal referred to in paragraph (4) is classified in Chapter 2 when suitable for human consumption or generally in heading 05.11 or Chapter 41 if unfit for human consumption.
Chapter 2 General Note (4) excludes offal if unfit for human consumption. The Explanatory Note (B)(a) to Heading 4103, HTSUS, excludes uncooked edible skins of animals of Chapter 2.
The Explanatory Notes to Heading 0206 indicate, in pertinent part, that:
The edible offal of this heading includes the following: …. edible skin …. For the principles to be applied for the classification of offal, see the General Explanatory Note to this Chapter.
You determined that because Double G’s product consists of edible pork skins which have been subject to inspection by the US Department of Agriculture (USDA) Food Safety Inspection Services (FSIS), the merchandise at issue was classified as edible offal of swine under subheading 0206.30.00, HTSUS. In making this determination, you considered irrelevant the fact that, in their condition as imported, the raw pork skins would require further processing before they are fit for sale to the consuming public, since all raw pork skins require some degree of processing before they are fit for human consumption. Protestant contends that in their condition as imported Double G’s pork skins are inedible and are properly classified as raw skins of swine (with or without hair) under 4103.30.2000, HTSUS.
Protestant asserts that because the pork skins are imported with hair and hair roots intact they are unpalatable and unfit for human consumption. In this regard, Protestant argues that these pork skins are inedible as the pigs’ hair may be contaminated with microorganisms which are potentially pathogenic to humans. Protestant also states that the imported pork skins only become fit for human consumption after extensive processing in the manufacturing of gelatin for pill capsules and paintballs takes place in the United States.1 However, protestant does not offer any independent documentary evidence to support these statements.
Moreover, we note that in response to a CF-28 pertaining to another entry of the same product, importer stated that these skins are fit for human consumption. Although in its supplemental submission Protestant states that the response should be read so that these skins are fit for human consumption after further processing takes place in the United States, we can not find any verifiable support for this proffered interpretation.
Protests against a decision of the appropriate CBP Officer must be in conformity with applicable statutory and regulatory requirements. Under 19 U.S.C. 1514(c)(1), a protest of a decision under subsection (a) of section 1514 must set forth distinctly and specifically each decision as to which protest is made. See, United States v. E.H. Bailey & Co., 32 CCPA 89, C.A.D. 291 (1945), United States v. Parksmith Corp., 514 F. 2d 1052, 62 CCPA 76 (1975), and related cases. Further, the CBP regulations require that a protest set forth a specific description of the merchandise affected by the decision as to which protest is made. 19 U.S.C. § 1514 and § 174.13(a)(5), CBP regulations (19 CFR § 174.13(a)(5)).
In the absence of corroborating evidence, we find that Protestant has failed to adequately substantiate its claim that the pork skins at issue are not edible or fit for human consumption. See Ford Motor Company v. United States, 157 F.3d 849, 855 (Fed. Cir. 1998).
Due to the lack of factual specificity for the subject merchandise, Protestant has not met its evidentiary burden that the classification and liquidation was incorrect. See 19 CFR 174.13(a)(5). As such, the protest is denied.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), 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. No later than 60 days from the date of this letter, the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP homepage on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Myles B. Harmon, Director
Commercial and Trade Facilitation Division
1 Protestant submits that for every shipment that enters the United States, a letter must be supplied to the USDA inspector-in-charge confirming that the pork skins are destined for a gelatin manufacturing operation in the United States. In essence, protestant contends that this letter serves to differentiate Double G’s product from the type of edible pork skins imported and cooked for “popping” in the making of edible “pork rinds.”