Decision on Application for Further Review of Protest No. 4601-04-101879, concerning the classification of tungsten carbide straight grade scrap

HQ 967452 May 26, 2005 CLA-2: RR:CR:TE 967452 ASM CATEGORY: Classification TARIFF NO.: 8113.00.0000 Port Director Customs and Border Protection Port of Newark/New York Region C/O Jennifer Tagliaferro Protest and Control 1100 Raymond Blvd. Suite 402 Newark, NJ 07102 RE: Decision on Application for Further Review of Protest No. 4601-04-101879, concerning the classification of tungsten carbide straight grade scrap Dear Port Director: The above-captioned protest was timely filed on September 1, 2004, against your decision in the classification and liquidation under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of tungsten carbide straight grade scrap, entered at the Customs and Border Protection (CBP) port of Newark, New Jersey. No sample has been provided. FACTS: The subject merchandise is identified as tungsten carbide straight grade scrap, which was packed and sorted in 28 drums (14 pallets) according to the specifications of the importer, Osram Sylvania Products. The CBP port of Newark liquidated the merchandise on August 27, 2004, and classified the tungsten carbide straight grade scrap in subheading 8113.00.0000, HTSUSA, which provides for “Cermets and articles thereof, including waste and scrap.” The Protestant, Schmidt Pritchard Services, Inc., timely filed a protest with an application for further review on behalf of their client, Osram Sylvania Products, asserting that the merchandise is classifiable in subheading 8101.97.0000, HTSUSA, which provides for “Tungsten (wolfram) and articles thereof, including waste and scrap: Other: Waste and scrap”. However, the Protestant has failed to provide CBP with the requested chemical analysis of the product and a further explanation as to why this product is scrap. ISSUE: Does the Application for Further Review (AFR) of Protest No. 4601-04-101879 satisfy the criteria for further review under 19 CFR Sections 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 not provided any criterion set forth in 19 CFR 174.24, which would justify further review. Furthermore, Protestant has failed to provide specific factual material and legal arguments that further review is warranted. The Protestant has ignored CBP’s request to provide additional information pertaining to their import. In accordance with CBP Regulations, the Protestant must provide specific information to meet its claim that AFR is warranted and not merely make general statements of conclusions. See 19 CFR 174.25(b)(3); HQ 966550, dated August 22, 2003 and HQ 966810, dated December 10, 2003. 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 4601-04-101879 does not meet the criteria for further review under 19 CFR §174.24 and 19 CFR §174.25. The application for further review 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