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HQ 546624

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February 6, 1997

RR:IT:VA 546624 KCC

CATEGORY: VALUATION

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 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

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

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