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HQ 563011




May 27, 2004

CLA-2: RR:CR:SM 563011 KSG

CATEGORY: CLASSIFICATION

Port Director
U.S. Customs & Border Protection
Lincoln/Juarez Bridge #2
Admin Building 2
Laredo, Texas 78040

RE: Application for Further Review of Protest 2304-02-100-255

Dear Port Director:

This is in reply to your correspondence forwarding Application for Further Review of Protest (AFR) 2304-020100-255, timely filed by counsel on behalf of J.J.’s Mae, Inc. dba Rainbeau.

FACTS:

The protest is against Customs and Border Protection’s (CBP) rate advance of 96 entries of textile articles.

Protestant entered the merchandise subject to this protest in subheading 9802.00.90 HTSUS. The protestant states that CBP advised the protestant to amend these entries to NAFTA entries. Protestant filed a 1520(d) application on October 9, 2001, consisting of a cover letter, NAFTA Certificates of Origin, amended entries and a summary schedule of the entries. CBP contacted the protestant to inform him that the cover letter was defective. Protestant states that they filed a second timely 1520(d) application on October 24, 2001, with a corrected cover letter. The Port states that it never received this submission and stated that the NAFTA Certificates of Origin were defective because there was no date filled in below the signature.

Protestant filed a protest with an application for further review on August 20, 2002, challenging the decision of the Port Director not to accord the merchandise the benefits of the NAFTA. The importer’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 4601-03-102615 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 III of the instant Protest ("Detailed Reasons for Protest and/or Further Review"), protestant restates the provisions of 19 CFR 174.24(b) and (c). However, protestant has not provided any criterion set forth in 19 CFR 174.24 which would justify further review. See 19 CFR 174.25(b)(3).

Moreover, the issue that the protestant raised regarding the mailing of the alleged second 1520(d) claim was addressed in Headquarters Ruling Letter 229249, dated March 15, 2002, in Customs’ favor.

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 2304-02-100255 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


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