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HQ 967708




August 11, 2005

CLA-2: RR:CTF:TCM 967708 KSH

CATEGORY: CLASSIFICATION

TARIFF NO.: 4407.10.0076

Port Director
U.S. Customs and Border Protection
Port of Portland
312 Fore Street
Portland, ME 04101

RE: Application for Further Review of Protest 0101-04-100039

Dear Port Director:

This is in reply to your correspondence forwarding Application for Further Review of Protest (AFR) 0101-04-100039, filed by Livingston International, Inc, on behalf of Sovebec Inc., Quebec. The protest at issue is against Customs and Border Protection’s (CBP) liquidation and assessment of additional duties on one entry of roughly sawed cedar under subheading 4407.10.0076 of the Harmonized Tariff Schedule of the United States (HTSUS).

Protestant initially entered the merchandise subject to this protest free of duty in subheading 4407.10.0076, HTSUS, on August 5, 2003. However, protestant subsequently filed a post summary adjustment claiming that the merchandise shipped is wood in the rough, whether or not stripped of bark, or roughly squared, of subheading 4403.20.0057, HTSUS, free of anti-dumping duties, on September 25, 2003. The entry liquidated under subheading 4407.10.0076, HTSUS on October 8, 2004, free of duty.

Protestant filed a protest with an application for further review on December 20, 2004. The protest was timely filed pursuant to 19 U.S.C. 1514 (c)(3) and 19 C.F.R. 174.12 (e)(1). The AFR request was approved.

In support of protestant’s application for further review, protestant alleges that the port’s decision is inconsistent with a decision made at a port with respect to the same or substantially similar merchandise. Protestant also states that the protest involves questions which have not been the subject of a Headquarters, U.S. Customs Service ruling or court decision.

FACTS:

The merchandise at issue is 16 units of 64 pieces of roughly sawed cedar measuring 6 feet by 6 feet by 8 feet. According to protestant, each piece is cut from logs at the headsaw leaving some bark on the logs which are destined for futher processing by other saws into various log patterns designed for use as a wall component of cedar log homes.

ISSUE:

Whether AFR 0101-04-100039 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:

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.

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 argued both that the denial is inconsistent with a decision made at a port and involves questions which have not been the subject of a CBP ruling or court decision. Protestant has failed to cite any inconsistent rulings or identify ports which have made a different classification determination which provide justification for further review under the criteria set forth in 19 CRF 174.24 and 174.25. Moreover, we have located rulings which have addressed the classification of merchandise in headings 4403 versus 4407, HTSUSA. See New York Ruling (NY) E84892, dated September 28, 1999.

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.

In returning the protest to you, we would further note that CBP recognizes that internal documentation and descriptions on invoices may be self-serving as was noted by the court in Regaliti, Inc. v. United States, 16 Ct. Int’l Trade 407 (1992). In the instant protest, the protestant has included an e-mail describing the products as “leaving somme [sic] bark on it and which are destined for further processing by other saws into various log patterns.”. A photograph of the lumber has also been included although there is no evidence that the photograph actually represents the merchandise that was being imported. In any event, assuming arguendo, that the photograph is the merchandise imported, the lumber appears to show uniform sized timbers with a small amount of bark and wane present, thus indicating a lumber product of the class or kind provided for under heading 4407, HTSUSA.

HOLDING:

Protest number 0101-04-100039 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.

In accordance with the Protest/Petition Processing Handbook, (CIS HB, January 2002, pp 18 and 21), you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division

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