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HQ W967727





November 22, 2006

CLA-2 RR:CTF:TCM 967727 ASM

CATEGORY: CLASSIFICATION

TARIFF NO.: 6203.42.4015

Port Director
Bureau of Customs and Border Protection
2350 North Sam Houston Parkway East
Suite 1000
Houston, Texas 77032-3100

RE: Application for Further Review of Protest No. 5301-04-100513

Dear Port Director:

This is in reference to a Protest and Application for Further Review (AFR) filed by Expeditors International of Washington, Inc., on behalf of the importer, Academy, Ltd., contesting the denial of duty-free treatment under the United States-Caribbean Basin Trade Partnership Act (“CBTPA”). No sample has been submitted to Customs and Border Protection (CBP) with this Protest.

FACTS:

This case involves men’s 100 percent cotton yarn dyed flannel pants. The subject merchandise is identified as Style CMF 3001. This merchandise was entered by the importer on October 16, 2003, without indicating the preference designation under preference group G, CBTPA. The Protestant asserts that, at the time of importation, the merchandise was constructed from fabric that was not available in commercial quantities in the United States and should have been granted preferential treatment.

The entry in question was liquidated on August 27, 2004. It is our understanding that the Textile Certificate of Origin, dated September 24, 2003, claiming preference group G, was not presented upon entry of the subject merchandise and was not submitted until the importer filed the Protest and Application for Further Review on October 15, 2004.

The Multiple Country Declaration, dated September 24, 2003, and signed by a representative of China Unique Garments Mfg. Co., Ltd., states that the merchandise was subjected to manufacturing and processing operations in, and/or incorporated materials originating in the following countries: Fabric – China; Trims – Taiwan; Cutting – Nicaragua; Manufacturing – Nicaragua. The Manufacturer’s Certificate, dated September 24, 2003, indicates that Style CMF 3001 was manufactured in Nicaragua. However, the certificate of origin, dated September 24, 2003, for this style certifies that the goods are of Taiwanese origin. ISSUE:

Does AFR 5301-04-100513 satisfy the criteria for further review under 19 C.F.R. 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”. However, the Protestant has failed to include in the written Protest, a request that this office provide further review of the Protest in accordance with 19 CFR 174.23. Furthermore, the Protestant failed to provide statements or evidence to substantiate that this protest involves facts or legal arguments, which warrant further review by this office. In view of the foregoing, we find that the Protestant failed to request further review of the Protest pursuant to 19 CFR 174.23. In addition, the Protestant has failed 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.

Furthermore, we note that pursuant to 19 CFR 10.225, the importer must make a written declaration, at the time of entry, i.e., on the entry summary or equivalent documentation, that the article qualifies for preferential treatment. Although a corrected declaration may be filed within 30 calendar days after the date of discovery of an error (19 CFR 10.225(b)), there is nothing contained in the protestant’s submission providing evidence that the corrected entry summary has been timely filed. In this instance, the CBTPA certificate submitted does not provide the name and address of the manufacturer in Nicaragua. Therefore, it was not correctly completed. We also agree, based on the information in the file, that the importer has failed to provide the necessary information to establish that the subject merchandise was entitled to preferential treatment under group G, CBTPA.

HOLDING:

Protest number 5301-04-100513 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.

Commercial and Trade Facilitation Division


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