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HQ 967977




November 7, 2005

CLA-2: RR:CTF:TCM 967977 KSH

CATEGORY: MARKING

TARIFF NO.: 6001.22.00

Lenny Feldman, Esq.
Sandler, Travis & Rosenberg, P.A.
5200 Blue Lagoon Drive
Miami, FL 33126-2022

RE: Request to set aside denial of Application for Further Review, Protest No. 5201-05-100045; 19 U.S.C. 1515(c); 19 CFR 174.24

Dear Mr. Feldman:

This is in reply to your request of September 6, 2005, on behalf of your client, TY, TY, TY, Inc., for Customs and Border Protection (“CBP”) to set aside the denial of your Application for Further Review (AFR) and to void the denial of Protest No. 5201-05-100045. The request was timely filed within 60 days after the date of the notice of denial.

FACTS:

The protest at issue is against Customs and Border Protection’s (CBP) assessment of marking duties on one entry of slippers, laundry bags and newspaper bags.

On June 16, 2004, your client entered the merchandise subject to the protest. On June 21, 2004, a Notice to Mark (CF 4647) was issued requiring each pair of slippers and bag to be permanently, legibly and conspicuously marked with “Made in China” within thirty days. Two extensions were granted to allow more time to comply with the CF 4647. On August 2, 2004, the second extension was revoked and your client was advised that the CF 4647 was due that same day. On August 3, 2004, your client signed and provided the CF 4647 to CBP and indicated that samples were included. By letter of the same date, your client further advised that it had inadvertently shipped into the stream of commerce 11,500 slippers and 6,200 bags and that it was in the process of marking 21,100 pairs of slippers and 13,600 bags, but 9,400 pairs of slippers and 200 bags had been marked.

At some later date, CBP visited the facility and is alleged to have confirmed that the remainder of the merchandise was properly marked. However, the CF 4647 has not been signed by a CBP official to date. On September 30, 2004, a Notice of Action assessing a 10% marking duty was issued for failing to properly mark the merchandise. The merchandise was liquidated on November 12, 2004. Your client filed a protest and application for further review on February 9, 2005. The protest and application for further review was denied on July 6, 2005. The protest was timely filed pursuant to 19 U.S.C. 1514(c)(3) and 19 C.F.R. 174.12(e)(1).

ISSUE:

Does AFR 5201-05-100045 satisfy the criteria for further review under 19 CFR §§174.24 and 174.25?

LAW AND ANALYSIS:

On behalf of your client, you have requested CBP set aside denial of the application for further review pursuant to 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 protest, if appropriate. If the Commissioner of Customs fails to act within 60 days after the date of the request, the request shall be considered denied. All denials of protests are effective from the date of original denial for purposes of section 2636 of Title 28.

Section 174.24 of the Customs Regulations (19 CFR §174.24) lists the criteria for granting an AFR. It states that an AFR will be granted when the decision against which the protest was filed:

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;

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

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 §177.11(b)(5) of this chapter.

Additionally, Section 174.25(b)(3) of the Customs Regulations (19 CFR §174.25(b)(3)) provides, in pertinent part, that an application for further review shall contain a statement of any facts or additional legal arguments, not part of the record, upon which the protesting party relies, including the criterion set forth in §174.24 which justifies further review.

In your request to set aside the denial of the protest and application for further review, you argue that the protest and application for further review satisfies the criteria of Section §174.24(b) or (c) as “Customs has not rendered a decision involving the same set of facts or legal arguments as the instant claim.”

Although the issue of the assessment of marking duties has been addressed in numerous rulings, we have determined that there is an issue of fact regarding the assessment of marking duties in this case and accordingly, we find that your client has met the criteria of 19 CFR §174.24. Your client’s request to set aside the denial of further review of the AFR is warranted.

HOLDING:

Protest number 5201-05-100045 has met the criteria for further review under 19 CFR §174.24 and 19 CFR §174.25. Accordingly, the Port Director improperly denied your client’s application for further review.

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division

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