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HQ 547653

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February 28, 2000

RR:IT:VA 547653 KCC

CATEGORY: VALUATION

Mr. John B. Pellegrini
Ross & Hardies
Park Avenue Tower
65 East 55th Street
New York, New York 10022-3219

RE: Review of denial of the Application for Further Review for Protest 2704-99-102392

Dear Mr. Pellegrini:

This is in reference to your letter dated January 3, 2000, on behalf of Artemis Innovations, Inc., requesting a review of the denial by the Los Angeles Port Director of the Application for Further Review for Protest 2704-99-102392 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:

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.

According to the documents in the file, the Protestant filed a timely Protest concerning Customs appraisement and classification of the subject merchandise pursuant to 19 U.S.C. §1401a(b). The Protest included an Application for Further Review based on §174.24 (a) and (b), Customs Regulations (19 CFR §174.24(a) and (b)), stating that:

The decision of the Port Director at liquidation as to the appraised value is inconsistent with the Headquarters Office decisions and court cases cited above. There has been no Headquarters Office decision on the classification of the subject footwear and, as noted above, the classification on other footwear with a grind plate will be before that office in the near future. The classification and appraisement issues raised in this protest involve specific questions of law and fact, including the interpretation of the Headquarters Office rulings and judicial decisions cited above, which have not been the subject of a Headquarters Office ruling or court decision. Therefore, should the Port Director be inclined to deny this protest, further review by the Headquarters Office is mandatory. 19 C.F.R. §§174.26(b)(1)(iii) and (iv).

The Protest was originally denied on November 23, 1999, pursuant to a November 10, 1999, Memorandum from the Assistant Port Director, Trade Operation, Los Angeles-Long Beach Seaport. We note that notice of the protest denial was not mailed until December 16, 1999. Box 16 of the Customs Form (“CF”) 19 concerning disposition of the Application for Further Review, was not marked. The November 10, 1999, Memorandum did stated that “[f]urther review of the above referenced protest has been completed in accordance with section 174.26(b)(2), Customs Regulations.” 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 3, 2000.

It is our position that the denial of the Application for Further Review was inappropriate. We find that the information before the Port as to the classification issue provided a sufficient bases upon which to deny the Application for Further Review. However, with respect to the value issue the Application for Further Review did comply with the appropriate regulations found in 19 CFR §§174.23-174.26. As set forth above the Application for Further Review of the Protest alleged that “theappraisement issues raised in this protest involve specific questions of law and fact, including the interpretation of the Headquarters Office rulings and judicial decisions, which have not been the subject of a Headquarters Office ruling or court decision” and that “the appraised value is inconsistent with the Headquarters Office decisions and court cases” which were elaborated on in detail within Protestant’s “Memorandum in Support of the Protest and Request for Further Review” dated September 29, 1999. 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 Los Angeles Port Director has been notified by this office to grant the Application for Further Review and to forward the Protest file to this office for a decision.

If you have any questions concerning this matter, please contact Kathleen Clarke, of my staff, at (202) 927-1662 or (202) 927-2399.

Sincerely,

Thomas L. Lobred

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