CLA-2: OT: RR:CTF:TCM H007769 KSH
Port Director
U.S. Customs and Border Protection
112 W. Stutsman
Pembina, ND 58271
RE: Application for Further Review of Protest 3401-06-100067
Dear Port Director: This is in reply to your correspondence forwarding Application for Further Review of Protest (AFR) 3401-06-100067, timely filed by UPS Supply Chain Solutions, on behalf of its client, LB International, Inc..
FACTS: The protest is against Customs and Border Protection’s (CBP) classification and liquidation of one entry of upholstery fabric covers under heading 6304 of the Harmonized Tariff Schedule of the United States (HTSUS). Protestant states the merchandise at issue are sew kits that are cut to size overseas to fit a specific sofa, loveseat or chair frame without which the product would not be complete. Protestant states that the merchandise at issue is not a slip cover.
On December 23, 2005, protestant entered the merchandise subject to this protest in heading 6304, HTSUS, which provides for “other furnishing articles, excluding those of heading 9404.” Based upon protestant’s failure to timely reply to a request for information regarding the nature of the merchandise, the port liquidated the merchandise as entered on October 27, 2006. On November 8, 2006, protestant filed a protest and application for further review against the decision of the Port Director to liquidate the merchandise in heading 6304, HTSUS. Protestant alleges that the merchandise should have been liquidated in heading 9401, HTSUS, which provides for “Seats (other than those of heading 9402), whether or not convertible into beds, and parts thereof.” 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).
ISSUE: Does AFR 3401-06-100067 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:
(a) 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;
(b) 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;
(c) 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
(d) 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 alleges that the further review is warranted under 19 CFR 174.24(b). However, rulings addressing material cut to size for use in seats has been previously addressed by this office as has the classification of slip covers. See HQ 960195, dated August 13, 1997 and NY R00494, dated June 29, 2004.
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.
HOLDING:
Protest number 3401-06-100067 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.
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