HQ 960448 - 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 - United States International Trade Commision Rulings

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HQ 960448

May 9, 1997

CLA-2 RR:TC:TE 960448 jb

CATEGORY: CLASSIFICATION

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

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