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HQ 968070




March 2, 2006

CLA-2 RR:CTF:TCM 968070 HkP

CATEGORY: CLASSIFICATION

Tariff No.: n/a

Port Director
U.S. Customs and Border Protection
Port of Phoenix
3002 E. Old Tower Road
Suite 400
Phoenix, AZ 85034

RE: Application for Further Review of Protest 2605-04-100031

Dear Port Director:

We are returning the Application for Further Review (“AFR”) and Protest 2605-04-100031 for your action. We find that the criteria for further review was not met as further explained below.

The protest is against the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of certain merchandise upon liquidation of the subject entry. The entry was liquidated on March 5, 2004, and the protest was timely filed on June 3, 2004.

In the “Application for Further Review” portion of the CF 19, specifically Block 15 in this case, the basis for further review states “San Francisco denied protest 2809-03-100253 on 6/13/03. We believe the ruling cited in denying this protest (NY F86535) does not take into account the correct essential character (i.e. none).” This response does not state a basis for AFR as required by the criteria set forth in 19 CFR §174.24. The memorandum in support of protest also does not set forth any information that meets the criteria of 19 CFR §174.24. The protestant’s AFR does not meet the requirements set forth in the applicable regulations, section 174.24 (19 C.F.R. §174.24), which provide:

Further review of a protest which would otherwise be denied by the port director shall be accorded a party filing an application for further review which meets the requirements of §174.25 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.

Further review will be accorded to a party filing an AFR that meets the requirements of section 174.25 and at least one of the criteria in section 174.24. In the subject protest, the AFR was approved notwithstanding the fact the protestant has not alleged any of the conditions required in section 174.24 with regard to the decision protested. Consequently, the criteria for further review have not been met and therefore, we are returning the protest to you for your disposition.

If you have any questions regarding the foregoing, please call Heather K. Pinnock, of my staff at 202-572-8828.

Sincerely,

Myles B. Harmon, Director

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