CLA-2 CO:R:C:T 956651 CMR
Patricia Hanson, Esq.
Katten Muchin & Zavis
525 West Monroe Street
Suite 1600
Chicago, Ill. 60661-3693
RE: Request to set aside denial of Application for Further
Review, Protest 3901-93-100706; 19 U.S.C. 1515(c)
Dear Ms. Hanson:
This ruling is in response to your request of June 22, 1994,
on behalf of your client, Conic Enterprise, Inc., for Customs to
set aside the denial of your Application for Further Review (AFR),
Protest 3901-93-100706. Your request is made pursuant to Section
617 of the North American Free Trade Agreement Implementation Act,
Title VI (Customs Modernization), amending Section 515 of the
Tariff Act of 1930, Title 19, United States Code, Section 1515 [19
U.S.C. 1515(c)]. As amended, 19 U.S.C. 1515(c) 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 protest, if appropriate.
The protest at issue involves the classification of certain
men's and women's jackets and whether the garments are classifiable
as water resistant. Customs classified the garments and liquidated
the entries on March 26, 1993, as men's and women's jackets, in
subheadings 6201.93.3515, HTSUSA, and 6202.93.5010, HTSUSA,
respectively, at 29.5 percent ad valorem. -2-
On behalf of your client, a timely protest was filed, asserting
classification of the merchandise as garments, made up of fabrics
of heading 5903, i.e., of subheadings 6210.40.10, HTSUSA, and
6210.50.10, HTSUSA, dutiable at 7.6 percent ad valorem, or in the
alternative, as water resistant jackets of subheadings 6201.93.30,
HTSUSA, and 6202.93.45, HTSUSA, dutiable at 7.6 percent ad valorem.
A memorandum stating the reasons for the protest and application
for further review was attached to the Customs Form 19, Protest
form.
This request is timely as the denial of the AFR occurred on
April 30, 1994, and Customs received your request that it be set
aside on June 23, 1994.
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 you believe it meets the requirements set out in
sections 174.24(a) and 174.24(b).
After review of the protest application with attached
memorandum, we must disagree with your position. It is our view
that the AFR was properly denied as the submitted protest -3-
contained no justification for granting Further Review under the
criteria in 19 C.F.R. 174.24 and 174.25. Section 9 of the Customs
Form 19, Protest Form specifically states that if Further Review
is sought, a justification under the criteria in 19 C.F.R. 174.24
and 174.25 must be set forth. You failed to do this and we will
not attempt to read into your arguments that which is not there.
Your application to set aside the denial of your Application
for Further Review (AFR), Protest 3901-93-100706 is denied.
Sincerely,
John Durant, Director