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HQ 966338

January 14, 2004

CLA-2: RR:CR:TE 966338 KSH


TARIFF NO.: 6110.30.3050; 6103.43.1540

Port Director
U.S. Customs and Border Protection
1 East Bay Street
Savannah, Georgia 31401

RE: Application for Further Review of Protest 1703-02-100259

Dear Port Director:

This is in reply to your correspondence forwarding Application for Further Review of Protest (AFR) 1703-02-100259, timely filed by Kmart Corporation.


The protest is against Customs and Border Protection’s (CBP) classification of a boy’s knit fleece jog top and pants under subheadings 6110.30.3050 and 6103.43.1540 of the Harmonized Tariff Schedule of the United States (HTSUS).

Protestant entered the merchandise subject to this protest in subheading 9819.11.12, HTSUSA on July 11, 2002. CBP issued a Notice of Detention on July 30, 2002 for the subject entry. The merchandise was excluded on August 30, 2002, due to failure to provide production records as requested by the Notice of Detention. On September 11, 2002, protestant filed a protest against the exclusion. A Notice of Rate Advance was issued on September 20, 2002. The protest was subsequently approved and the entry was released on September 23, 2002. The merchandise was liquidated under the subheadings 6110.30.3050 and 6103.43.1450, HTSUSA, on October 18, 2002.

Protestant filed a protest with an application for further review on November 18, 2002, challenging the decision of the Port Director not to accord the merchandise the benefits of the AGOA and declining to liquidate the merchandise in subheading 9819.11.12, HTSUSA. The importer’s AFR request was approved. The protest was timely filed pursuant to 19 U.S.C. 1514 (c)(3) and 19 C.F.R. 174.12 (e)(1).


Does AFR 1703-02-100259 satisfy the criteria for further review under 19 CFR §§174.24 and 174.25?


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.

Under Section III of the instant Protest ("Detailed Reasons for Protest and/or Further Review"), protestant has set forth detailed legal arguments upon which the protest is filed. However, protestant has not provided any criterion set forth in 19 CFR 174.24 which would justify further review. See 19 CFR 174.25(b)(3).

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.

For your consideration, we note that the issue of the eligibility of garments for preferential treatment under the AGOA where foreign origin elastic waistbands were incorporated into the garments was addressed in Headquarters Ruling Letters (HQ) 562451, dated September 4, 2002, HQ 562766, dated August 6, 2003 and HQ 966514, dated September 5, 2003. We also refer you to HQ 966584, dated September 22, 2003, in which we addressed the eligibility of articles for preferential treatment where a roll of fabric is spread on a table and cut to form individual strips of fabric the width of the roll. The strips of fabric are then further cut to the appropriate length required for the formation of a neckband, cuff or waistband. (Compare HQ 966634, dated September 10, 2003).


Protest number 1703-02-100259 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.


Myles B. Harmon, Director
Commercial Rulings Division

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