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HQ 967167




August 31, 2004

CLA-2: RR:CR:TE 967167 KSH

CATEGORY: CLASSIFICATION

TARIFF NO.: 6203.42.2010, 6203.42.4015, 6204.62.4020

Jonathan M. Fee, Esq.
Alston & Bird LLP
601 Pennsylvania Avenue, N.W.
North Building, 10th Floor
Washington, D.C. 20004-2601

RE: Request to set aside denial of Application for Further Review, Protest No.’s 5201-04-100110, 5201-04-100111, 5201-04-100112, 5201-04-100113, 5201-04-100109; 19 U.S.C. 1515(c); 19 CFR 174.24

Dear Mr. Fee:

This is in reply to your request of June 1, 2004, on behalf of your client, Rives Apparel International, LLC., for Customs and Border Protection (“CBP”) to set aside the denial of your Application for Further Review (AFR) and to void the denial of Protest No.’s: 5201-04-100110, 5201-04-100111, 5201-04-100112, 5201-04-100113, and 5201-04-100109. The request was timely filed within 60 days after the date of the notice of denial.

FACTS:

The five protests at issue are against Customs and Border Protection’s (CBP) classification of five entries of men’s overalls and pants under subheadings 6203.42.2010, 6203.42.4015 and 6204.62.4020 of the Harmonized Tariff Schedule of the United States (HTSUS).

Your client entered the merchandise subject to the protests in subheading 9820.11.06, HTSUS. CBP issued notices of rate advances on the five entries between November 20, 2003 and November 21, 2003. The merchandise was liquidated under the appropriate subheadings for Headings 6203 and 6204, HTSUS, between December 5, 2003 and January 16, 2004.

Your client filed protests with applications for further review on February 12, 2004, challenging the decision of the Port Director not to accord the merchandise the benefits of the Caribbean Basin Trade Partnership Act (CBTPA) and declining to liquidate the merchandise in subheading 9820.11.06, HTSUS. The AFR request was denied for lack of sufficient information in the protests on March 31, 2004. The protests were timely filed pursuant to 19 U.S.C. 1514(c)(3) and 19 C.F.R. 174.12(e)(1).

ISSUE:

Do AFR’s 5201-04-100110, 5201-04-100111, 5201-04-100112, 5201-04-100113 and 5201-04-100109 satisfy the criteria for further review under 19 CFR §§174.24 and 174.25?

LAW AND ANALYSIS:

Your client has requested to set aside denial of the applications for further review pursuant to 19 U.S.C. 1515(c) which provides, in part, as follows:

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 the 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. If the Commissioner of Customs fails to act within 60 days after the date of the request, the request shall be considered denied. All denials of protests are effective from the date of original denial for purposes of section 2636 of Title 28.

As previously noted, the request to set aside denial of the applications for further review was timely filed. Due to inaction on the request to set aside the denial of the application for further review it is deemed denied. Nonetheless, we have set forth our reasoning infra whether it is appropriate to set aside the denial of the application for further review and void the denial of protest.

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.

In your letter dated June 1, 2004, you argue that CBP did not consider that all of the requested documents had been furnished to the responsible import specialist with a letter from your client on December 1, 2003, prior to both the liquidation and filing of the protests and request for AFRs. You contend that the denial is inconsistent with your client’s right to submit requested documents at any time before liquidation is final under 19 C.F.R. 10.112.

Although the submitted documentation may have been provided prior to liquidation in accordance with your client’s rights under 19 C.F.R. 10.112, your client did not include that same documentation as part of its protests and requests for AFR. Moreover, the submission of that documentation to support a claim of preferential treatment under the CBTPA addresses the substantive claims of the protests, but not the justification requirements for approval of AFRs.

Under Section V of the instant Protests ("Justification for Further Review under the Criteria in 19 CFR 174.24 and 174.25"), your client has simply stated that further review is requested per 19 CFR 174.24(a). Your client has not specified any criterion set forth in 19 CFR 174.24(a) which would justify further review. It is not sufficient to state that further review is warranted pursuant to 19 CFR 174.24(a) without specifically setting forth the inconsistencies 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. See 19 CFR 174.25(b)(3).

Accordingly, we find that the your client has failed to meet the criteria of 19 CFR §174.24 and the justification requirements of 19 CFR §174.25(b)(3), and that your client’s request to set aside the denial of further review of the AFR is not warranted.

HOLDING:

Protest numbers 5201-04-100110, 5201-04-100111, 5201-04-100112, 5201-04-100113 and 5201-04-100109 do not meet the criteria for further review under 19 CFR §174.24 and 19 CFR §174.25. Accordingly, the Port Director properly denied your client’s applications for further review.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

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