Application for Further Review of Protest No. 1703-06-100015; Criteria for further review not met

HQ W968413 January 19, 2007 CLA-2 RR:CTF:TCM W968413 BtB CATEGORY: Classification Port Director U.S. Customs and Border Protection 1 East Bay Street Savannah, GA 31401 RE: Application for Further Review of Protest No. 1703-06-100015; Criteria for further review not met Dear Port Director: On or about September 21, 2006, you forwarded Protest No. 1703-06-100015, filed by counsel on behalf of TEF Inc. (“TEF”), to this office for further review. We have completed our review of this protest and are returning it to you for appropriate action because it does not meet criteria for further review. Along with the protest, you forwarded a sample of the merchandise. FACTS: Protest No. 1703-06-100015, which included an Application for Further Review (“AFR”) was timely filed by TEF on January 18, 2006. The decision protested is the classification and rate and amount of duties chargeable on three entries of glazed ceramic tiles from Brazil made through the Port of Savannah, Georgia in December 2004. Entry documentation including commercial invoices and bills of lading identify the merchandise as “glazed ceramic tiles.” TEF identifies the products as being made from “a mixture of natural raw materials, such as clay, talcum, nepheline and phyllite” and identifies them as being “ceramic” and “glazed” in its memorandum supporting the protest. The samples that you forwarded are 12 x 12 inch tiles that are between 5.8 to 6.5 mm in thickness. TEF states that after importation into the United States, the articles are affixed to a wood board (two per board), packaged together, and sold as a “floating flooring system.” The entries at issue liquidated on respective dates in October 2005 with the merchandise classified in subheading 6908.90.0010, Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”), which provides for: “Glazed ceramic flags and paving, hearth or wall tiles; glazed ceramic mosaic cubes and the like, whether or not on a backing, Other, Tiles, the largest surface area of which is capable of being enclosed in a square the side of which is 30 cm or more.” Articles classified in this provision are not eligible for special tariff treatment under the Generalized System of Preferences (“GSP”). In the protest at issue, TEF asserts that the articles at issue are not ceramic tiles, but “ceramic veneers” which are properly classified in subheading 6914.90.8000, HTSUSA, which provides for: “Other ceramic articles: Other: Other.” TEF also claims that the merchandise, a product of Brazil that it states meets all of the requirements for special tariff treatment under the GSP, is eligible for such special treatment as a result of its proper classification in subheading 6914.90.8000, HTSUSA. ISSUE: Does the AFR in Protest No. 1703-06-100015 satisfy the criteria for further review under 19 CFR §§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: 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 19 CFR §174.25 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. Recitation of a single or all of the lettered items of 19 CFR §174.24 is an insufficient basis for granting an application for further review. In addition to setting forth a criteria of 19 CFR §174.24, an AFR must also meet the requirements of 19 CFR §174.25. See e.g., Headquarters Ruling Letter (“HQ”) 230502, issued December 13, 2005. Among the other requirements of 19 CFR §174.25, 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.” On the protest at issue, TEF merely states the following: We respectfully request further review under 19 CFR 174.24(b), in that neither Customs nor the courts have addressed the classification and GSP eligibility of ceramic veneer of this type. The above citation is not accurate in two respects. First, the merchandise at issue is glazed ceramic tiles, not “ceramic veneers.” The sample of the merchandise and import documentation evidence this fact. Renaming a product on a CBP Form 19 does not change its identify for classification purposes. Second, CBP has ruled on the classification of merchandise of this type, ceramic tiles, numerous times. See e.g., New York Ruling Letter (“NY”) J88304, dated October 3, 2003; NY I86857, dated October 21, 2002; NY H88901, dated March 22, 2002, and NY H84738, dated August 10, 2001. Some of the tiles in these rulings are substantially similar (in both composition and size) to the merchandise at issue in Protest 1703-06-100015. While the tiles at issue are not imported attached to a board, CBP has also ruled on glazed ceramic tiles that are affixed to wood boards at the time of importation. See NY H82934, dated July 25, 2001. In view of the foregoing, we find the statement on which TEF relies to support justification of its AFR to be inaccurate and, as a result, find that 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. HOLDING: Protest No. 1703-06-100015 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, Myles B. Harmon, Director Commercial and Trade Facilitation Division