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HQ W968038




August 18, 2006

CLA-2 RR:CTF:TCM 968038 ASM

CATEGORY: CLASSIFICATION

TARIFF NO.: 0304.20.6033

Port Director
U.S. Customs and Border Protection
200 East Bay Street
Charleston, SC 29401

RE: Application for Further Review of Protest No. 1601-05-100356

Dear Port Director:

This is in reply to the Application for Further Review of Protest (AFR) 1601-05-100356, filed on behalf of Panhandle Trading, Inc., the importer/protestant, by the law firm of Becker and Poliakoff, P.A.

FACTS:

The subject merchandise was entered on January 3, 2005. According to documentation contained in the file, the merchandise was invoiced and entered at the time of importation as “frozen fish/channa snakehead fillets” classifiable under subheading 0303.79.2095, of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

On April 28, 2005, Customs and Border Protection (CBP) issued a rate advance indicating that samples taken from previous shipments from the same supplier with the same description as “frozen channa fillets” were actually determined to be “frozen basa, tra, sutchi, or swai fillets”, which are classifiable under subheading 0304.20.6033, HTSUSA. These varieties of fish are commonly known to be “catfish” and are named in the Department of Commerce, International Trade Administration antidumping duty order A552-801.

The entry in question was liquidated on May 18, 2005. The Protest was filed with CBP on November 14, 2005. In the protest, it is asserted that the imported products were not subject to the antidumping duties because they were “grouper fillets”, not “catfish” or “basa” as assessed by CBP.

ISSUE:

Does AFR 1601-05-100356 satisfy the criteria for further review under 19 CFR Sections 174.24 and 174.25?

LAW AND ANALYSIS:

Section 174.24 of the Customs and Border Protection (CBP) 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:

(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;

(b) 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;

(c) 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

(d) 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 CBP 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 does not provide any statement or evidence to substantiate that this protest involves facts or legal arguments, which warrant further review by this office. As such, the protestant has failed to complete Section V of the Protest in which justification for further review under the criteria set forth in 19 CRF 174.24 and 174.25 is required.

In view of the foregoing, 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 1601-05-100356 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,


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