CLA-2 RR:CR:TE 962405 jb
Allan H. Kamnitz, Esq.
Sharretts, Paley, Carter & Blauvelt, P.C.
Sixty Seven Broad Street
New York, NY 10004
RE: Request to set aside denial of Application for Further Review, Protest No.1001-98- 103513; 19 U.S.C. 1515(c); 19 CFR 174.24
Dear Mr. Kamnitz:
This ruling is in response to your request of December 1, 1998, on behalf of your client, Steinmetz Bros., 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.1001-98-103513. 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 proper classification for certain swimwear produced from a woven textile fabric that was coated with 600 mm of polyurethane. The merchandise was entered under the provision for garments made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907, in heading 6210, HTSUS. However, Customs determined that the classification of this merchandise was in the provision for track suits, ski-suits and swimwear, in heading 6211, HTSUS.
A timely protest was filed on behalf of your client asserting that the proper classification for this merchandise was in heading 6210, HTSUS. The protest was reviewed at the port level based on 19 CFR 174.26(b)(2), which states that, “All other protests shall be reviewed by a designee of the port director who did not participate directly in the decision which is the subject of the protest.” Based on conversations with the port, it is clear that when the subject AFR was denied on November 27, 1998, the denial was premised on 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 or 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 November 27, 1998, and Customs received your request that it be set aside on December 2, 1998. 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 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 [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). 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.
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
Commercial Rulings Division