CLA-2 RR:TC:TE 960448 jb
Jonathan M. Fee, Esq.
Grunfeld, Desiderio, Lebowitz & Silverman, LLP
1201 West Peachtree Street, N.E., Suite 4860
Atlanta, Georgia 30309
RE: Request to set aside denial of Application for Further
Review, Protest No.1001-97- 101695; 19 U.S.C. 1515(c); 19 CFR
174.24
Dear Mr. Fee:
This ruling is in response to your request of April 24,
1997, on behalf of your client, American & Efird, Inc., for
Customs to set aside the denial of your Application for Further
Review (AFR) and to void the denial of the protest, Protest No.
1001-97-101695. Your request for review is under the authority
of 19 U.S.C. 1515(c) which provides, in part, as follows:
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 the protest, if appropriate.
The protest at issue involves the country of origin of sewing
thread. The manufacturing operations for the subject sewing thread
include single yarns being spun in China and then subjecting the
yarns to a twisting process and further dyeing and finishing
operations in Israel. Customs determined that the processing
operations in Israel did not confer origin and that consequently,
the country of origin of the sewing thread was China.
A timely protest was filed on behalf of your client asserting
that the proper country of origin for the subject sewing thread is
Israel and that the sewing thread qualified for duty free treatment
under the United States-Israel Free Trade Agreement Implementation
Act. A memorandum stating the reasons for the protest and
application for further review was attached to the Customs Form
(CF) 19, Protest form.
On March 28, 1997, the subject AFR was denied. The attachment
to the CF 19 stated that the AFR was denied upon the basis of 19
CFR 174.24(b) which states that further review will be granted when
the decision against which the protest was filed "is alleged to
involve questions of law of fact which have not been ruled upon by
the Commissioner of Customs or his designee or by the Customs
courts". Customs determined that no new issues of law or fact were
presented.
We initially note that your request under section 1515(c) was
timely filed. The notice of denial of the AFR was dated March 28,
1997, and Customs received your request that it be set aside on
April 24, 1997. Therefore, your request was filed within 60 days
after the date of the notice of denial.
The criteria required for the granting of a request for
further review are set forth in 19 CFR 174.24 of the Customs
Regulations. This section states, in pertinent part, that further
review will be accorded to:
. . . a party filing an application for further review
which meets the
requirements of [section] 174.25 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 in any district
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 [section] 177.11(b)(5) of this
chapter.
In your request, you submit that the AFR should have been
granted as it meets the requirements set out in 19 CFR 174.24 (a),
(b) and (c). After review of the protest application with
attached memorandum, we do agree that the AFR was improperly denied
as the submitted protest does contain justification for granting
Further Review under the criteria in 19 CFR 174.24. There appear
to be questions of fact which have not previously been considered.
In conclusion your request for relief under 19 U.S.C. 1515(c)
is approved and the denial of the AFR by the Port Director is put
aside. 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.
Sincerely,
John Durant, Director
Tariff Classification Appeals
Division