Request to set aside denial of Application for Further Review, Protest No. 1601-07-100191; 19 U.S.C. 1515(c); 19 CFR 174.24

HQ H020959 January 3, 2008 CLA-2 OT:RR:CTF:TCM H020959 KSH CATEGORY: Classification TARIFF NO.: 4412.29.36 John B. Pellegrini, Esq. McGuire Woods LLP 1345 Avenue of the Americas Seventh Floor New York, NY 10105 RE: Request to set aside denial of Application for Further Review, Protest No. 1601-07-100191; 19 U.S.C. 1515(c); 19 CFR 174.24 Dear Mr. Pellegrini: This is in reply to your request of December 12, 2007, on behalf of your client, Tarket Wood, Inc., 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. 1601-07-100191. The request was timely filed within 60 days after the date of the notice of denial.  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 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…. Section 174.24 of the Customs and Border Protection Regulations (19 C.F.R. §174.24) lists the criteria for granting an AFR. It states, in pertinent part, that an AFR will be granted 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. Additionally, Section 174.25(b)(3) of the CBP Regulations (19 C.F.R. §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 section 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 the decision of the Port Director is inconsistent with previous decisions, namely HQ 966511, dated July 22, 2004, and the Court of International Trade’s decision in Millenium Lumber Distribution Ltd. v. United States, Slip. Op. 07-56 (April 16, 2007) and that the issues raised in the Protest involve specific questions of law and fact which have not been the subject of a Headquarters ruling or court decision. Review of the Protest application with attached memorandum reveals that a specific ruling was identified and arguments presented that the port's decision was inconsistent with a cited ruling. Additionally, legal arguments not previously considered by CBP regarding the application of court decisions to the subject merchandise were presented. Thus, the Protest and AFR contained information and arguments which supported a determination that the requirements for approval of the AFR had been met. Accordingly, we agree that the AFR was improperly denied as the submitted Protest does contain justification for granting further review under the criteria set forth in 19 C.F.R. §174.24 and §174.25.  Protest number 1601-07-100191 meets the criteria for further review. 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 and grant the application for further review. We are by copy of this letter requesting the port to forward the subject Protest/AFR file to this office, along with their comments, for our action.At that time, the merits of the protest will be decided. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division