RR:IT:VA 546624 KCC
Margaret R. Polito
Neville, Peterson & Williams
80 Broad Street
34th Floor
New York, New York, 10004
RE: Review of denial of the Application for Further Review for
Protest 4102-96-100087
Dear Ms. Polito:
This is in reference to your letters dated January 17 and
27, 1997, on behalf of C.S. Crable Sportswear, requesting a
review of the denial by the Cleveland Port Director of the
Application for Further Review for Protest 4102-96-100087 under
the North American Free Trade Agreement Implementation Act, Title
VI (Customs Modernization), 617, amending 515 of the Tariff Act
of 1930, [19 U.S.C. 1515(c)]. As amended, 19 U.S.C. 1515(c)
provides, in part, as follows:
[i]f 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 the
protest, if appropriate.
According to the documents in the file, the Protestant filed
a timely Protest concerning Customs appraisement of the subject
merchandise pursuant to 19 U.S.C. 1401a(b). The Protest
included an Application for Further Review apparently based on
174.24(b), Customs Regulations (19 CFR 174.24(b)), stating
that:
Crable has not previously received an adverse
administrative ruling from Customs with respect to this
claim nor is such a claim pending. Crable has not
received an adverse decision from the Customs courts on
this issue nor does it have a claim pending before the
courts concerning the proper valuation of this
merchandise. In the event that local Customs officials
preliminarily determine to deny this protest, further
review is warranted in order to properly determine the
deductive value of the defective goods being appraised
(emphasis added).
The Protest was originally denied on December 16, 1996, based on
the ground that the Protestant failed to establish that the goods
were defective. This denial did not include any reference to the
Protestant's Application for Further Review. In a December 19,
1996, letter to Customs in Cleveland, you requested that the
denial of the Protest be voided pursuant to 19 U.S.C. 1515(c).
Thereafter, on January 3, 1997, Cleveland Customs informed the
Protestant that the Application for Further Review of Protest
4102-96-100087 was denied because it did not comply with 19 CFR
174.24:
The protesting party has failed to allege any of the
following:
(a) Decision is inconsistent with a ruling;
(b) Decision involves a question which has not previously
been ruled upon;
(c) Although previously ruled upon, certain facts or
arguments were not considered at the time.
(d) Although previously ruled upon, there were questions
which the Customs Service refused to
consider.
A review of the ACS Protest Module confirms that Protest 4102-96-100087 was denied on January 3, 1997. The request for
reconsideration of the denial of the Application for Further
Review and Protest was timely filed with this office within 60
days, on January 17, 1997.
It is our position that the denial of the Application for
Further Review was inappropriate. Although the Application for
Further Review of the Protest did not use the exact wordage found
in 19 CFR 172.24, it did comply with all the Application for
Further Review regulations found in 19 CFR 174.23-174.26. The
emphasized language above found in the Application for Further
Review of the Protest alleged questions of law and fact which
Customs had not ruled upon, i.e., the appraisement of the alleged
defective merchandise pursuant to deductive value. Therefore,
we are granting your request to set aside the denial of the
Application for Further Review and to void the denial of the
Protest. The Cleveland Port Director has been notified by this
office to grant the Application for Further Review and to forward
the Protest file to this office. At that time, the merits of the
Protest shall be decided by this office.
If you have any questions concerning this matter, please
contact Kathleen Clarke, of my staff, at (202) 482-7063 or (202)
482-7010.
Sincerely,
Acting Director,
International Trade Compliance
Division