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HQ 967890




November 2, 2005

CLA-2: RR:CTF:TCM 967890 KSH

CATEGORY: CLASSIFICATION

TARIFF NO.: 6001.22.00

Brett Ian Harris, Esq.
McKenna Long & Aldridge
1900 K Street, N.W.
Washington, D.C. 20006

RE: Request to set aside denial of Application for Further Review, Protest No. 2704-05-101169; 19 U.S.C. 1515(c); 19 CFR 174.24

Dear Mr. Harris:

This is in reply to your request of September 6, 2005, on behalf of your client, Clark International Services, 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. 2704-05-101169. The request was timely filed within 60 days after the date of the notice of denial.

FACTS:

The protest at issue is against Customs and Border Protection’s (CBP) Notice of Redelivery of one entry of multi-layer bonded fabric which CBP classified under subheading 6001.22.00 of the Harmonized Tariff Schedule of the United States (HTSUS).

On December 15, 2004, your client entered the merchandise subject to the protest in subheading 5903.20.25, HTSUS. The merchandise was conditionally released on December 20, 2004, awaiting commodity specialist team approval. It was released from CBP custody on February 2, 2005. CBP issued a Notice to Redeliver on February 18, 2005 advising that the merchandise was classified in subheading 6001.22.00, HTSUS, and that Chinese origin merchandise classifiable in this heading was subject to quota in 2004 and required a visa.

Your client filed a protest with an application for further review on June 6, 2005, challenging the Notice of Redelivery. The AFR request was denied on July 22, 2005, on the basis that the Notice of Redelivery was timely and the question of classification had been previously determined in Headquarters Ruling Letter (HQ) 959013 dated September 16, 1997. The protest was timely filed pursuant to 19 U.S.C. 1514(c)(3) and 19 C.F.R. 174.12(e)(1).

ISSUE:

Does AFR 2704-05-101169 satisfy the criteria for further review under 19 CFR §§174.24 and 174.25?

LAW AND ANALYSIS:

On behalf of your client, you have requested CBP set aside denial of the application 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.

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 request to set aside the denial of the protest and application for further review, you argue that whether the Notice of Redelivery was issued more than thirty days after the merchandise was initially released and whether the merchandise at issue was properly classified in subheading 5903.20.25, HTSUS satisfies the criteria of Section §174.24(b) as the entry under review had not been ruled on before.

Although we agree that this case involves a question of fact, the answer to that question has been ruled upon by the Commissioner of Customs’ designee. Your client has previously received an adverse administrative decision from the Commissioner of CBP or his designee in New York Ruling Letter (NY) L81638, dated April 13, 2005. Additionally, NY L81638 and Headquarters Ruling Letter (HQ) 959013, dated September 16, 1997, addressed whether multi-layer bonded fabric is classifiable in heading 5903 by virtue of GRI 3. As such AFR is not warranted.

Moreover, we note that the Notice of Redelivery was properly issued within the appropriate time limits. The CBP Regulations governing the recall of merchandise released from CBP custody are found in 19 C.F.R. §141.113. The instant case falls squarely within the purview of 19 C.F.R. §141.113(c). The 90-day regulatory conditional release period commenced on the date the merchandise was released from CBP custody, i.e., February 2, 2005. CBP issued the Notice to Redeliver on February 18, 2005, well within the 180-day conditional release period. Accordingly, CBP’s demand for redelivery of the merchandise was proper.

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

HOLDING:

Protest number 2704-05-101169 does 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 application for further review.

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division

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