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HQ H005624

March 8, 2007

PRO-2-05-RR:CTF:TCM H005624 IOR

Rodriguez O’Donnell Ross
8430 W. Bryn Mawr Ave.
Ste. 525
Chicago, IL 60631
Attn: Jessica Rifkin, Esq,

RE: Review of denial of Application for Further Review of Protest No. 4101-06-100110; 19 U.S.C. §1515(c); Graphite Sales

Dear Sir or Madam:

This is in response to your letter of January 16, 2007, on behalf of Graphite Sales (the protestant), requesting that we set aside the denial of further review in the above-referenced protest and application for further review (AFR).

The request for review is pursuant to the authority of 19 U.S.C. §1515(c) which provides as follows, in pertinent part:

If a protesting party believes that an application for further review was erroneously or improperly denied or was denied without authority for such action, it may file with the Commissioner of Customs a written request that the denial of application for further review be set aside. Such request must be filed within 60 days after the date of the notice of the denial. The Commissioner of Customs may review such request and, based solely on the information before the Customs Service at the time the application for further review was denied, may set aside the denial of the application for further review and void the denial of protest, if appropriate.

According to Customs and Border Protection (CBP) records, the subject protest was timely filed on September 1, 2006, within 180 days of the April 28, 2006 liquidation of the subject five entries. The stated grounds for the AFR were that CBP’s classification decision is inconsistent with cited Headquarters and New York rulings. The protest involves the classification of ceramic heating elements which were liquidated under heading 9613, Harmonized Tariff Schedule of the United States (HTSUS), which provides for cigarette lighters and other lighters and parts thereof. The protestant asserted that the correct classification of the articles is under 8516, HTSUS, which provides for electric heating resistors.

In support of classification under heading 8516, HTSUS, the protestant cited to HQ 966865, dated May 12, 2004 (classifying air heater with heating element surrounded by ceramic insulators in heading 8516, HTSUS), NY J88008, dated August 21, 2003 (classifying a ceramic heating assembly with an embedded heating element in heading 8516, HTSUS), NY C89299, dated June 26, 1998 (classifying a heater composed of an electric heating resistor and two electrical connections in heading 8516, HTSUS), and NY H82850, dated July 2, 2001 (classifying an supplemental electrical supplemental vehicle heater in heading 8516, HTSUS).

The AFR was denied on the grounds that it did not meet the criteria for AFR, and the protest was denied in full. The reason given for the denial of the protest is that parts of igniters are properly classified in subheading 9613.90.4000, HTSUS, and a reference is made to NY rulings K81060, dated November 21, 2003, and J81791, dated April 2, 2003. NY K81060 classified an electrode assembly comprised of an electrode housed in a ceramic body and plastic-coated wire with a fitting for joining the wire to a spark generator (igniter) in heading 9613, HTSUS. NY J81791 classified an igniter comprised of an ignition electrode housed in a ceramic body and connected to a cable in heading 9613, HTSUS.

Based on the foregoing, we conclude that the AFR was erroneously or improperly denied, or denied without authority for such action. Accordingly, the request to set aside the denial of the Application for Further Review is granted, and the denial of the protest is voided. The Port Director will be notified by this office to void the denial of the protest, grant the application for further review and forward the protest file for further review by this office. At that time, the merits of the protest will be decided.


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