CLA-2: OT:RR:CTF:TCM H024847 KSH
Gilbert Lee Sandler, Esq.
Sandler, Travis & Rosenberg
5200 Blue Lagoon Drive
Miami, FL 33126-2022
RE: Request to set aside denial of Application for Further Review and Void the denial of Protest No.’s: 5201-07-100400; 5201-07-100471; 5201-07-100541; 5201-07-100539; 19 U.S.C. 1515(c); 19 U.S.C. 1515(d); 19 CFR 174.24
Dear Mr. Sandler: This is in reply to your request of March 13, 2008, on behalf of your client, Washington International Insurance, 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.’s: 5201-07-100400; 5201-07-100471; 5201-07-100541and; 5201-07-100539. The request was timely filed within 60 days after the date of the notice of denial.
I. Request to set aside the denial of the application for further review
The request for review is pursuant to the authority of 19 U.S.C. §1515(c) and 19 U.S.C. §1515(d). We will address the 19 U.S.C. §1515(c) claim first.
Section 1515(c) provides as follows, in pertinent part:
(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 Application for Further Review, you argue 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. (Emphasis added). Specifically, you allege that the protest asserts facts which were not before CBP at the time of its decisions to reclassify the merchandise regarding its composition. You do not claim that the arguments presented in your protest and application for further review raise any specific questions of law or fact not previously the subject of a Headquarters ruling or decision. Rather, you argue that your protest contains new questions of fact regarding the composition of the wood that were not considered at the time the entries were reclassified. You have not identified those facts. As such, you have not provided sufficient justification for the granting of an AFR. Moreover, pursuant to 19 C.F.R. §1515(c), our review is limited to the information which was before the port at the time the further review was denied. Additionally, we note that CBP has issued numerous letters regarding the classification of wood flooring with extensive factual descriptions of the flooring at issue therein. See HQ 964798, dated July 31, 2002; HQ 965179, dated January 14, 2002 and; HQ 966511, dated July 22, 2004.
II. Request to void the denial of the protests
You also argue that the protest claims should be voided pursuant to 19 U.S.C. §1515(d) for failure to provide a statement of the reasons for the denial as required by 19 U.S.C. §1515(a) and 19 CFR 174.30(a) and for failing to provide an opportunity to address an evidentiary deficiency found controlling by CBP but not communicated to protestant. 19 U.S.C. §1515(d) provides:
(d) If a protest is timely and properly filed, but is denied contrary to proper instructions, the Customs Service, may on its own initiative, or pursuant to a written request by the protesting party filed with the appropriate port director within 90 days after the date of the protest denial, void the denial of the protest.
19 U.S.C. §1515(a) provides in relevant part:
* * *
Notice of the denial of any protest shall be mailed in the form and manner prescribed by the Secretary. Such notice shall include a statement of the reasons for the denial, as well as a statement informing the protesting party of his right to file a civil action contesting the denial of a protest under section 1514 of this title.
19 C.F.R. 174.30(a) provides:
Notice of denial of a protest shall be mailed to any person filing a protest or his agent in all cases other than those in which accelerated disposition was requested and in which no action has been taken within 30 days after the date of mailing of the request. The notice shall include a statement of the reasons for the denial, as well as a statement informing the protesting party of the right to file a civil action contesting the denial of the protest under section 514, Tariff Act of 1930, as amended (19 U.S.C. 1514). For purposes of section 515(a), Tariff Act of 1930, as amended (19 U.S.C. 1515(a)), the date appearing on such notice shall be deemed the date on which such notice was mailed.
Upon review of each of the four protests filed, we note that all of the denied protests clearly indicate that the request for AFR is denied “pursuant to HQ 966507, dated June 24, 2003” and the protest was denied based on “insufficient evidence/information to support the claim.” Therefore, the port complied with the requirements of both 19 U.S.C. §1515(a) and 19 CFR 174.30(a).
It is within the port’s discretion to consider additional evidence submitted by the protestant after the protest is filed. To that end, 19 CFR 174.28 provides:
In determining whether to allow or deny a protest filed within the time allowed, a reviewing officer may consider alternative claims and additional grounds or arguments submitted in writing by the protesting party with respect to any decision which is the subject of a valid protest at any time prior to disposition of the protest. In any case in which alternative claims or additional grounds or arguments are submitted orally, they shall be considered in the allowance or denial of the protest only if submitted in writing in conjunction with, or no later than 60 days after, such oral submission. (Emphasis added).
The plain language of 19 CFR 174.28 states that the reviewing officer may consider a protestant’s additional written arguments that are the subject of a valid protest at any time prior to disposition of the protest. Though you requested that no action be taken until you obtained additional supporting documentation, you did not submit any additional information prior to the decisions to deny the protests during the five month period of time during which the protests were being considered.
The relevant statutes and regulations do not address dispositions of protests in which a request for a conference and or a request to withhold a decision is made. In the absence of any such language, the port was within its discretion to deny the protests based upon the evidence submitted with the protests without first conducting a conference and/or awaiting additional evidence to support the claim. Consequently, the port did not deny the protests contrary to proper instructions.
HOLDING:
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