HQ 966550

August 22, 2003

CLA-2: RR:CR:TE 966550 KSH

CATEGORY: Classification

TARIFF NO.: 6212.10.5020

Area Director

JFK International Airport Area

C/O Chief, Liquidation and Protest Branch

Building 77

JFK International Airport

Jamaica, NY 11430

RE: Application for Further Review of Protest 4701-03-100072

Dear Sir:

This is in reply to your correspondence forwarding Application for
Further Review of Protest (AFR) 4701-03-100072, filed by Emery
Distribution Systems, Inc., on behalf of Sara Lee Courtaulds.

FACTS:

The protest is against Customs and Border Protection's (CBP)
classification of women's brassieres under subheading 6212.10.5020 of
the Harmonized Tariff Schedule of the United States (HTSUS). The
merchandise was invoiced and entered at the time of importation as
brassieres.

The protestant claims that the brassieres were actually women's thongs
which are classified under subheading 6108.22.9020, HTSUS. Accordingly,
protestant requests reliquidation with a refund to the importer of
record.

Customs liquidated the entry in question on November 22, 2002, and the
protestant timely filed the protest and request for AFR on January 9,
2003.

ISSUE:

Does AFR 4701-03-100072 satisfy the criteria for further review under

19 CFR §§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:

(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 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.

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. Protestant has merely cited 19 CFR 174.24 as authority for
further review in section II of the Protest ("Detailed reasons for
Protest"). Protestant has completely 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.

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 4701-03-100072 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 Rulings Division