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HQ 967125




August 31, 2004

CLA-2: RR:CR:TE 967125 KSH

CATEGORY: CLASSIFICATION

TARIFF NO.: 3707.90.3290

Port Director
Port of Norfolk
Customs and Border Protection
101 E. Main Street
Norfolk, VA 23510

RE: Application for Further Review of Protest 1401-04-100072

Dear Port Director:

This is in reply to your correspondence forwarding Application for Further Review of Protest (AFR) 1401-04-100072, timely filed by Eternal Technology Corporation.

FACTS:

The protest is against Customs and Border Protection’s (CBP) classification of one entry of photo-resist dry film under subheading 3707.90.3290 of the Harmonized Tariff Schedule of the United States (HTSUS).

Protestant entered the merchandise subject to this protest in subheading 3702.95.0000, HTSUS. CBP issued a notice of a rate advance on the entry on December 23, 2003. The merchandise was liquidated under subheading 3707.90.3290, HTSUS, on January 16, 2004.

Protestant filed a protest with an application for further review on February 12, 2004, challenging the decision of the Port Director to liquidate the merchandise in subheading 3707.90.3290, HTSUS. 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 1401-04-100072 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.

Protestant has set forth detailed arguments upon which the protest is filed. However, protestant has not provided any criterion set forth in 19 CFR 174.24 which would justify further review despite having been advised of two rulings which may have helped in making an argument for justification for further review pursuant to 19 C.F.R. 174.24. 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.

HOLDING:

Protest number 1401-04-100072 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 approved. We are returning the protest file to your office for appropriate action.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division


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