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HQ 968040




February 28, 2006

CLA-2: RR:CTF:TCM 968040 HkP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6114.20.0010

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

RE: Request to set aside denial of Application for Further Review, Protest No. 4601-05-102639; 19 U.S.C. §1515(c); 19 C.F.R. §174.24

Dear Mr. Pellegrini:

This is in reply to your request of January 3, 2006, on behalf of your client, Age Group Ltd. (“Age Group”), for U.S. Customs and Border Protection (“CBP”) to set aside the denial of Age Group’s Application for Further Review (“AFR”) of Protest No. 4601-05-102639. The request was timely filed within 60 days after the date of the notice of denial.

FACTS:

The protest at issue is against CBP’s Notice to Redeliver one entry of knit pajama tops, which CBP classified under subheading 6114.20.0010 of the Harmonized Tariff Schedule of the United States (“HTSUS”).

On July 19, 2005, your client entered the subject merchandise in subheading 6108.91.0030, HTSUS. It was released from CBP custody on that same date. CBP issued a Notice to Redeliver on October 21, 2005, advising that the correct classification of the merchandise was in subheading 6114.20.0010, HTSUS, falling within textile category 339 and subject to China safeguards. The Notice also advised that category 339 was closed and that the merchandise had to be redelivered to CBP for seizure purposes.

On November 28, 2005, you filed, on behalf of your client, a Protest with an Application for Further Review challenging the Notice of Redelivery as untimely and based on an erroneous classification. The AFR request was denied on December 23, 2005, on the basis that the Notice of Redelivery was timely and that the issue of timeliness under 19 C.F.R. §141.113(b) had already been addressed in Essex Manufacturing v. United States, 264 F. Supp. 2d 1285. The Protest was timely filed pursuant to 19 U.S.C. §1514(c)(3) and 19 C.F.R. §174.12(e)(2). ISSUE:

Whether the AFR of Protest No. 4601-05-102639 satisfies the criteria for further review under 19 C.F.R. §§174.24 and 174.25.

LAW AND ANALYSIS:

On behalf of your client, you have requested that CBP set aside its 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 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:

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 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 to seek redelivery under the circumstances of this case is inconsistent with previous Headquarters decisions, and that the issues raised in the Protest involve specific questions of law and fact, including the interpretation of Headquarters rulings, which have not been the subject of a Headquarters ruling or court decision.

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 set forth in 19 C.F.R. §174.24.

HOLDING:

Protest number 4601-05-102639 meets the criteria for further review. Your client’s request for relief under 19 U.S.C. §1515(c) is approved and the denial of the AFR by the Port Director is set 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.

Sincerely,

Myles B. Harmon, Director Commercial and Trade Facilitation Division

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