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HQ 967342

October 29, 2004

CLA-2 RR:CR:TE 967342 SG


John B. Pellegrini, Esq.
McGuire Woods LLP
1345 Avenue of the Americas
New York, NY 10105-0106

Dear Mr. Pellegrini:

This is in response to your request dated September 28, 2004, on behalf of your client, Allegro Intimates, Inc., that the Bureau of Customs and Border Protection (CBP) set aside the denial of the Application for Further Review (AFR) of Protest 3901-04-100805 pursuant to 19 U.S.C. 1515(c). The protest and application for further review (AFR) were denied on September 1, 2004

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 the validity of a Notice to Redeliver and the incorporated classification.

As noted above, the denial of the protest and AFR occurred on September 1, 2004, and CBP received your request that it be set aside on October 6, 2004. Therefore, your request was filed within 60 days after the date of the notice of denial. Your request under section 1515(c) was therefore timely filed.

The criteria required for the granting of a request for further review are set forth in 19 CFR 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.

You submit that the protest and AFR should have been granted as they meet the requirements set out in 19 CFR 174.24 (a) and (b). You assert that the decision of the Port Director on the proposed classification of the garment as a shirt is inconsistent with a number of cited Headquarters decisions. You allege that neither the validity of the demand for redelivery, the classification, nor the appraisement of the subject merchandise had been the subject of a Headquarters ruling or a court decision. Therefore, it is your conclusion that further review by Headquarters is mandatory under 19 CFR 174.26(b)(1)(iii) and (iv).

We note that our review of your request is limited to the information presented to the port in support of your request for the AFR.

The protest at issue involves the classification of certain men's garments and whether the garments are classifiable as shirts or jackets. Your client entered the garments on March 25, 2004, under subheading 6201.92.2031, of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as men’s blue denim jackets similar to anoraks and windbreakers, and subject to visa/quota category 334.

CBP issued a Notice to Redeliver on March 31, 2004. The garments were determined by CBP to be classified in subheading 6205.20.2050, HTSUSA, as men's woven cotton shirts. This change in classification requires a visa in Category 340.

You filed the instant protest and AFR on May 19, 2004, against the Notice to Redeliver. The protest challenges the validity of the notice based on the classification of the garments for quota/visa purposes.

Review of the protest application with attached memorandum reveals that specific rulings were identified and arguments presented that the port's decision to seek redelivery was inconsistent with the cited rulings. The issues raised in your protest and AFR involve specific questions of law and fact, including the interpretation of a number of Headquarters rulings. 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 in 19 CFR 174.24.

In conclusion your request for relief under 19 U.S.C. 1515(c) is approved and the denial of the AFR by the Port Director is put aside. 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.


Myles B. Harmon, Director Commercial Rulings Division

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