CLA-2: RR:CR:TE 966550 KSH
Area Director
JFK International Airport Area
C/O Chief, Liquidation and Protest Branch
Building 77
JFK International Airport
Jamaica, NY 11430
RE: Application for Further Review of Protest 4701-03-100072
Dear Sir:
This is in reply to your correspondence forwarding Application for Further Review of Protest (AFR) 4701-03-100072, filed by Emery Distribution Systems, Inc., on behalf of Sara Lee Courtaulds.
FACTS:
The protest is against Customs and Border Protection’s (CBP) classification of women’s brassieres under subheading 6212.10.5020 of the Harmonized Tariff Schedule of the United States (HTSUS). The merchandise was invoiced and entered at the time of importation as brassieres.
The protestant claims that the brassieres were actually women’s thongs which are classified under subheading 6108.22.9020, HTSUS. Accordingly, protestant requests reliquidation with a refund to the importer of record.
Customs liquidated the entry in question on November 22, 2002, and the protestant timely filed the protest and request for AFR on January 9, 2003.
ISSUE:
Does AFR 4701-03-100072 satisfy the criteria for further review under
19 CFR §§174.24 and 174.25?
LAW AND ANALYSIS:
Section 174.24 of the Customs 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 Customs 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 which warrant further review by this office. Protestant has merely cited 19 CFR 174.24 as authority for further review in section II of the Protest (“Detailed reasons for Protest”). Protestant has completely failed to complete Section V of the Protest in which justification for further review under the criteria set forth in 19 CRF 174.24 and 174.25 is required.
Accordingly, we find that the protestant 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.
HOLDING:
Protest number 4701-03-100072 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 appropriate action.
Sincerely,
Myles B. Harmon, Director
Commercial Rulings Division