Request to set aside denial of Application for Further Review, Protest 1703-04-100303; 19 U.S.C. 1515(c) & (d)

HQ 967501 April 11, 2005 CLA-2 RR:CR:TE 967501 TMF CATEGORY: Classification Sandra L. Vance Kmart Management Corporation Resource Center 3100 West Big Beaver Road Troy, MI 48084-3163 RE: Request to set aside denial of Application for Further Review, Protest 1703-04-100303; 19 U.S.C. 1515(c) & (d) Dear Ms. Vance: This in response to your request of December 9, 2004 that the Bureau of Customs and Border Protection (CBP) set aside the denial of the Application for Further Review (AFR) for Protest 1703-04-100303 pursuant to 19 U.S.C. §1515(c). The protest and application for further review (AFR) were denied on October 14, 2004. You also requested that the denial of AFR be voided pursuant to 19 U.S.C.§1515(d). Section 515 of the Tariff Act of 1930, Title 19, United States Code, Section 1515 (19 U.S.C. 1515(c)) as amended, 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.... The protest at issue involves a claim for preferential treatment for certain apparel under the African Growth and Opportunity Act (AGOA). The request to set aside the denial of AFR was timely filed on December 10, 2004. The criteria required for the granting of a request for further review are set forth in 19 C.F.R. 174.24 of the Customs Regulations. This section states, in pertinent part, that further review will be accorded to: . . . a party filing an application for further review which meets the requirements of §174.25 when the decision against which the protest was filed: (a) 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; (b) 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; (c) 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 (d) 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. In your request, you state that the AFR should have been granted under 19 C.F.R. Sections 174.24 and 174.25 on the basis that the denial would result in a decision inconsistent with prior Customs rulings. However, in your original AFR request, you did not provide any prior rulings or determinations for us to consider in your case. Further, you failed to set forth the inconsistency within a ruling of the Commissioner of the Customs or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise. Rather, you merely recited the statement that any denial would result in a decision inconsistent with prior Customs rulings. We note that our review of your request to set aside is limited to the information presented to the port in support of your request for the AFR. As we have determined that your request for AFR failed to meet criteria for further review under 19 C.F.R.§§ 174.24 and 174.25, we find that the Port correctly denied your request for AFR. Therefore, your application to set aside the denial of the AFR of Protest 1703-04-100303 under 19 U.S.C. §1515(c) is denied. Finally, you requested that we void the Port’s denial pursuant to 19 U.S.C. §1515(d), which states: If a protest is timely and properly filed, but is denied contrary to proper instructions, the Customs Service may on its own initiative, or pursuant to a written request by the protesting party filed with the appropriate port director within 90 days after the date of the protest denial, void the denial of the protest. In this instance, we have reviewed your request and have found that the Port did not act contrary to proper instructions. Consequently, your request to void the Port’s denial pursuant to U.S.C. §1515(d) is denied. Sincerely, Myles B. Harmon, Director Commercial Rulings Division