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HQ 967838





August 25, 2005

CLA-2: RR:CTF:TCM 967838 BtB

CATEGORY: CLASSIFICATION

TARIFF NO.: None

Port Director
Customs & Border Protection
2350 N. Sam Houston Parkway East
Suite 1000
Houston, TX 77032
Attention: Linda Finnerty

RE: Application for Further Review of Protest 5301-05-100128; Failure to Satisfy Criteria Justifying Further Review

Dear Port Director:

This is in reply to your correspondence forwarding Application for Further Review (AFR) of Protest No. 5301-05-100128, timely filed by E.R. Hawthorne & Co. Inc. on behalf of Ike Trading Co., Ltd. (“Protestant”).

FACTS:

Protest No. 5301-05-100128 is against Customs and Border Protection’s classification of one shipment of plywood from Indonesia under subheading 4412.13.5160, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for: “Plywood, veneered panels and similar laminated wood: Plywood consisting solely of sheets of wood, each ply not exceeding 6 mm in thickness: With at least one outer ply of tropical wood specified in subheading note 1 to this chapter: Not surface covered, or surface covered with a clear or transparent material which does not obscure the grain, texture or markings of the face ply: Other: Other, Other: Not surface covered.” The shipment was entered through the Port of Houston on January 20, 2004.

In Protest No. 5301-05-100128, protestant asserts that the shipment of plywood is classified under subheading 4412.14.3160, HTSUSA, which provides for: “Plywood, veneered panels and similar laminated wood: Plywood consisting solely of sheets of wood, each ply not exceeding 6 mm in thickness: Other, with at least one outer ply of nonconiferous wood: Not surface covered, or surface covered with a clear of transparent material which does not obscure the grain, texture or markings of the face ply: Other: Other: Other: Not surface covered. Protestant also asserts that the shipment is “eligible for duty free treatment under GSP from Indonesia.”

ISSUE:

Does the AFR of Protest No. 5301-05-100128 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) states that further review shall be accorded a party filing an AFR meeting the requirements of §174.25 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;

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.

While the Protestant set forth reasons for the Protest (in Section II of the Customs Form 19 used to file the Protest), Protestant did not set forth a criterion justifying further review under §174.24 (in Section V, Box 15 of the Customs Form 19 or elsewhere). Accordingly, we find that the Protestant has failed to satisfy the criteria of 19 CFR §174.24 and the justification requirements of 19 CFR §174.25(b)(3), and that there are no grounds upon which further review of the protest can be approved.

HOLDING:

The AFR of Protest No. 5301-05-100128 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 and Trade Facilitation Division


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