Request to set aside denial of Application for Further Review, Protest No. 1601-08-100579; 19 U.S.C. 1515(c); 19 CFR 174.24

HQ H064877 July 08, 2009 CLA-2 OT:RR:CTF:TCM H064877 JPJ CATEGORY: Classification TARIFF NO.: 6302.31.5010; 6302.31.5020 John R. Soares Sr. Director, Compliance Wal-Mart Stores, Inc. 601 N. Walton Blvd. Bentonville, AR 72716-0410 RE: Request to set aside denial of Application for Further Review, Protest No. 1601-08-100579; 19 U.S.C. 1515(c); 19 CFR 174.24 Dear Mr. Soares:  This is in reply to your request of June 3, 2009, on behalf of Wal-Mart Stores, 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. 1601-08-100579. 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 CBP 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 Headquarters Ruling Letters, (HQ) 965033, dated July 16, 2002 (which determined that a pillowcase did not contain any embroidery and was classified under subheading 6302.31.9010, HTSUS), and HQ 955576, dated June 1, 1994 (which determined that bed sheets did not contain any embroidery and were classified under subheading 6302.21.2040, HTSUS, if printed, and 6302.31.2040, HTSUS, if not printed). The AFR was denied on the grounds that it did not meet the criteria for AFR, and the protest was denied in full. The reason given for the denial of the protest is that the sample submitted was properly classifiable in subheadings 6302.31.5010 and 6302.31.5020, HTSUS, as bed linen containing any embroidery, pursuant to three rulings: HQ 965033, dated July 16, 2002, discussed supra, HQ 955576, dated June 1, 1994, discussed supra, and HQ H003735, dated January 25, 2008 (which determined that cotton pillowcases and sheets with embroidered hem were classified in subheadings 6302.31.5010 and 6302.31.5020, HTSUS, which provides for “Bed linen, table linen, toilet linen, and kitchen linen: Other bed linen: Of cotton: Containing any embroidery, lace, braid, edging, trimming, piping or appliqué work: Not napped, Pillowcases (6302.31.5010)/Sheets (6302.31.5020)”. Review of the Protest application reveals that 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 1601-08-100579 meets the criteria for further review. Accordingly, the request to set aside the denial of the Application for Further Review is granted, 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