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]{.underline}, 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.

[]{.mark}

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]{.underline}, 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