CLA-2: OT:RR:CTF:TCM H117359 ASM
John A. Schoenig, Esq.
Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP
399 Park Avenue
25th Floor
New York, NY 10022-4877
RE: Request to set aside denial of Application for Further Review and Void the denial of Protest No.: 4103-10-100086; 19 U.S.C. 1515(c); 19 CFR 174.24
Dear Mr. Schoenig: This is in reply to your request of July 22, 2010, on behalf of your client, Specialized Bicycle Components, 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.: 4103-10-100086. 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). We begin by noting that your request is deemed denied because it is beyond 60 days from the date of your request. However, Section 1515(c) provides, in pertinent part, as follows:
(c) 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 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 AFR, you assert that the importer’s claim was adequately documented and the protest was erroneously denied by CBP. However, as we have already noted, your request is deemed denied. We further note that pursuant to 19 C.F.R. §1515(c), our review is limited to the information which was before the port at the time the AFR was denied. Additionally, we note that CBP has issued a ruling letter regarding the classification of men’s cycling garments which is directly on point and substantially similar to the garments now at issue. See New York Ruling Letter (NY) N048306, dated January 16, 2009. Although you have cited 174.24(c) in support of your position, you do not present “new” facts or legal arguments that would support the AFR. As such, you have not provided sufficient justification for the granting of an AFR.
In view of the foregoing, we find that the port did not deny the protest contrary to proper instructions.
The Port Director properly denied your protest. Your request to void the protest and set aside the denial of further review is denied.
Sincerely,
Myles B. Harmon, Director Commercial and Trade Facilitation Division