Application for Further Review of Protest 2402-09-100088

HQ H133217 April 20, 2011 CLA-2: OT:RR:CTF:TCM H133217 JPJ CATEGORY: Classification TARIFF NO.: 3924.10.20; 3924.10.40 Port Director U.S. Customs and Border Protection 797 South Zaragoza El Paso, Texas 79907 ATTN: Yvette Zuñiga-Morales, SIS RE: Application for Further Review of Protest 2402-09-100088 Dear Port Director: This is in reply to your correspondence forwarding Application for Further Review (AFR) of Protest 2402-09-100088, filed by Family Dollar Services, Inc. FACTS: The protest is against U.S. Customs and Border Protection’s (CBP) classification and liquidation of one entry that included merchandise described as a “Halloween design storage jar” and a “bowl with Halloween decal 3 assorted colors” under subheadings 3924.10.40 and 3924.10.20 of the Harmonized Tariff Schedule of the United States (HTSUS). The jars and bowls depicted various motifs associated with Halloween such as ghosts, jack-o-lanterns, witches, and spiders with spider webs. The merchandise was invoiced and entered at the time of importation under subheadings 3924.10.40 and 3924.10.20, HTSUS. Protestant is requesting that action on the protest be withheld until a Chapter 98, HTSUS, duty-free provision covering this merchandise is implemented in the HTSUS. Protestant entered the merchandise subject to this protest on July 30, 2008. The merchandise was liquidated as entered on June 26, 2009. Protestant filed a protest with an AFR on December 24, 2009. The protest was timely filed pursuant to 19 U.S.C. 1514 (c)(3) and 19 C.F.R. 174.12 (e)(1). ISSUE: Does AFR 2402-09-100088 satisfy the criteria for further review under 19 CFR §§174.24 and 174.25? LAW AND ANALYSIS: Section 174.24 of the 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: 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 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, Number 16, of the instant Protest (CBP Form 19) (“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 the claim that the protest warrants further review by this office under the criteria set forth in 19 CFR 174.24 and 174.25. Instead, Protestant cites CBP’s 2008 Guidance on the Classification of Festive Articles to request that action on the protest be suspended until a Chapter 98, HTSUS, duty-free provision covering the goods is implemented in the HTSUS. 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 2402-09-100088 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. If you have any questions, please contact Jacinto Juarez, of my staff, at 202-325-0027. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division