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HQ 966757




December 10, 2003

CLA-2 RR:CR:TE 966757 KSH

Category: CLASSIFICATION

TARIFF NO.: 4908.90.0000

Port Director
Bureau of Customs and Border Protection
2nd and Chestnut Streets
Philadelphia, PA 19106

RE: Application for Further Review of Protest Number 1101-03-100290; Elastofix® heat transfers; Heading 4908

Dear Port Director:

This is in reply to an application for further review (AFR) of Protest No. 1101-03-100290, dated August 25, 2003, on behalf of United Parcel Service.

The protest is against Customs and Border Protection’s (CBP) classification of three entries of heat transfers. The merchandise was entered on September 12, 2002, September 20, 2002 and December 12, 2002 under subheading 4908.90.0000 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). The entries were liquidated on July 7, 2003. The protest against liquidation in subheading 3919.90.5060, HTSUSA, was timely filed on August 25, 2003. Protestant requested further review under 19 CFR 174.24(a) but did not cite to rulings alleged to be inconsistent on substantially similar merchandise. The request for AFR was granted and forwarded to this office for review on September 10, 2003. Samples of the merchandise at issue have been included for review.

Protestant has requested and we are granting protestant’s request for confidential treatment for the commercial and financial information referring to the chemical composition and make-up of the merchandise under protest. It has long been the position of the Customs Service that a section 177.2(b)(7) grant of confidentiality is coterminous with Exemption 4 of the Freedom of Information Act (5 U.S.C. 552(b)(4)). Exemption 4 was enacted to protect from disclosure information such as customer lists, costs, identities of suppliers, quantities of merchandise, formulas, assets, profits, losses, market shares, and similar information, the disclosure of which would inure to the competitive disadvantage of the party providing the information.

FACTS:

The merchandise in question is identified by the protestant as “elastofix®” heat transfers. The transfers can be used for a range of applications including the decoration of bags, seatbelts, tires and awnings. However, the transfer’s primary application is for the decoration of clothing. The submitted samples are used for the labeling of car tires and the decoration of clothing and car interior parts.

The transfers consist of pictures, designs or letters in single or multiple colors on lightweight paper that is treated to receive the imprint which has been coated with adhesive. Some of the transfers have a protective paper to prevent the transfers from sticking together when they are packed for shipment and storage. The protective paper is removed before the transfer is applied. The transfers are applied by using the appropriate range of heat and pressure.

ISSUE:

Does AFR 1101-03-100290 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 has set forth detailed legal arguments upon which the protest is filed. However, protestant has not set forth any inconsistency between the decision upon which the protest was predicated and a ruling (or rulings) or decision on the same or substantially similar merchandise as required by 19 CFR 174.24(a). See 19 CFR 174.25(b)(3).

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.

Although AFR is not warranted, we direct your attention to the Explanatory Notes for Heading 4908, HTSUSA, for a review of the description of articles covered therein.

HOLDING:

Protest number 1101-03-100290 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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