HQ 546624

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

§174.24(b), Customs Regulations (19 CFR §174.24(b)), stating

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

§174.24:

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

Division