Request to set aside denial of Application for Further Review, Protest 3901-93-100706; 19 U.S.C. 1515(c)

HQ 956651 July 21, 1994 CLA-2 CO:R:C:T 956651 CMR CATEGORY: Classification Patricia Hanson, Esq. Katten Muchin & Zavis 525 West Monroe Street Suite 1600 Chicago, Ill. 60661-3693 RE: Request to set aside denial of Application for Further Review, Protest 3901-93-100706; 19 U.S.C. 1515(c) Dear Ms. Hanson: This ruling is in response to your request of June 22, 1994, on behalf of your client, Conic Enterprise, Inc., for Customs to set aside the denial of your Application for Further Review (AFR), Protest 3901-93-100706. Your request is made pursuant to Section 617 of the North American Free Trade Agreement Implementation Act, Title VI (Customs Modernization), amending Section 515 of the Tariff Act of 1930, Title 19, United States Code, Section 1515 [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 protest, if appropriate. The protest at issue involves the classification of certain men's and women's jackets and whether the garments are classifiable as water resistant. Customs classified the garments and liquidated the entries on March 26, 1993, as men's and women's jackets, in subheadings 6201.93.3515, HTSUSA, and 6202.93.5010, HTSUSA, respectively, at 29.5 percent ad valorem. -2- On behalf of your client, a timely protest was filed, asserting classification of the merchandise as garments, made up of fabrics of heading 5903, i.e., of subheadings 6210.40.10, HTSUSA, and 6210.50.10, HTSUSA, dutiable at 7.6 percent ad valorem, or in the alternative, as water resistant jackets of subheadings 6201.93.30, HTSUSA, and 6202.93.45, HTSUSA, dutiable at 7.6 percent ad valorem. A memorandum stating the reasons for the protest and application for further review was attached to the Customs Form 19, Protest form. This request is timely as the denial of the AFR occurred on April 30, 1994, and Customs received your request that it be set aside on June 23, 1994. 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 you believe it meets the requirements set out in sections 174.24(a) and 174.24(b). After review of the protest application with attached memorandum, we must disagree with your position. It is our view that the AFR was properly denied as the submitted protest -3- contained no justification for granting Further Review under the criteria in 19 C.F.R. 174.24 and 174.25. Section 9 of the Customs Form 19, Protest Form specifically states that if Further Review is sought, a justification under the criteria in 19 C.F.R. 174.24 and 174.25 must be set forth. You failed to do this and we will not attempt to read into your arguments that which is not there. Your application to set aside the denial of your Application for Further Review (AFR), Protest 3901-93-100706 is denied. Sincerely, John Durant, Director