Application for Further Review of Protest 1803-01-100019

HQ 965387 February 11, 2002 CLA-2: RR:CR:TE 965387 RH CATEGORY: Classification TARIFF NO.: 4412.14.4060 Area Port Director U.S. Customs Service 2831 Talleyrand Avenue Jacksonville, FL 32206 RE: Application for Further Review of Protest 1803-01-100019 Dear Sir: This is in reply to your correspondence forwarding Application for Further Review of Protest (AFR) 1803-01-100019, filed by the law firm of Givens & Associates, PLLC, on behalf of IHLO Sales & Import Company. FACTS: The protest is against Customs classification of Brazilian plywood “faveira” and Brazilian plywood “marupa” under subheading 4412.14.4060 of the Harmonized Tariff Schedule of the United States (HTSUS), as plywood with at least one outer ply of nonconiferous wood. The protestant claims that the plywood should be classified under subheading 4412.13.4060, HTSUS, as plywood with at least one outer ply of tropical wood. Customs liquidated the two entries in question on November 13, 2000, and the protestant timely filed the AFR on February 9, 2001. - 2 - ISSUE: Does AFR 1803-01-100019 satisfy the criteria for further review under 19 CFR §§174.24 and 174.25? LAW AND ANALYSIS: Section 174.24 of the Customs Regulations (19 CFR §174.24) lists the criteria for granting an AFR. It states 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 175.25(b)(3) of the Customs Regulations (19 CFR §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 §174.24 which justifies further review. Under Section V of the instant Protest (“Justification of Further Review Under the Criteria in 19 CFR 174.24 and 174.25”), the protestant simple reiterates the criteria listed in 19 CFR §174.24 but does not provide any statement or evidence to substantiate that this protest involves facts or legal arguments which warrant further review by this office. Accordingly, we find that the protestant fails to meet the criteria of 19 CFR §174.24 and the justification requirements of 19 CFR §174.25(b)(3), and that further review of the AFR is not warranted. - 3 - Finally, we note that the Court of International Trade recently ruled in the government’s favor on a Cross-Motion for Summary Judgement on a similar classification issue in the case of Russell Stadelman & Co. v. United States, 242 F. 3d 1044 (Ct. Int’l Trade 2001). In that case, the court ruled that the plaintiff’s imports of sumauma (Ceiba pentandra) plywood, faveira (Parkia spp.) plywood, and mangue (T. rhoisoia) plywood are not tropical woods. HOLDING: Protest number 1803-01-100019 does not meet the criteria for further review under 19 CFR §174.24 and 19 CFR §174.25. Accordingly, the AFR should not have been granted. We are returning the protest file to your office for appropriate action. For your information, we agree with your classification recommendation. If upon your review you still hold that opinion, the protest should be denied. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution. Sincerely, John Durant, Director Commercial Rulings Division