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HQ 965826




November 26, 2002

CLA-2 RR:CR:TE 965826 RH

CATEGORY: CLASSIFICATION

TARIFF NO.: 6110.20.2075

John B. Pelligrini, Esq.
Ross & Hardies
65 East 55th Street
New York, NY 10022-3219

RE: Application to Set Aside Denial of Request of Further Review of Protest 1001-01-102230

Dear Mr. Pelligrini:

This is in reply to your letter of July 16, 2002, requesting our office to set aside the denial of request for further review of protest (AFR) number 1001-01-102230, pursuant to 19 U.S.C. §1515(c).

In the request to set aside the denial of protest 1001-01-102230, you state that the memorandum in support of the AFR raised new issues and facts that had not been previously presented to Headquarters.

Additionally, you argue that review is required under 19 CFR §174.24(a) and 19 CFR §174.26(b)(1)(i) (inconsistent rulings) because Customs approved another protest (number 1001-00-101389) on April 20, 2000, covering the classification of identical merchandise.

Finally, you argue that review of the AFR in question is mandatory under 19 CFR §§174.26(b)(1)(iii) and (iv), because it raises the question of whether the subject entries were liquidated by operation of law.

FACTS:

On June 6, 2001, the importer filed the AFR at issue in this case. The port denied the AFR on June 21, 2002. The explanation given for denial of the AFR was “Ruling HQ 964430 issued.”

Headquarters Ruling Letter (HQ) 964430, dated November 28, 2000, was a decision on a Request for Internal Advice, filed by the importer on January 21,

2000 (and received by our office on August 17, 2000), in reply to a CF 29, issued on the same lead entry number as the one in the instant AFR. The merchandise subject to both the AFR and the IA was a knit upper-body garment (style number S1EZ304).

With regard to the lead entry in question in the subject AFR, Customs records reflect that the merchandise entered the United States on November 9, 1999. It was released from Customs custody the same day.

Liquidation of the entry was extended twice. The first extension occurred on February 12, 2000, at which time Customs mailed a copy of Customs Form (CF) 4333-A to both the importer of record, Rousso Apparel Group, Inc., and to the surety, Washington International Insurance Company. Customs issued the second extension on December 2, 2000, and again mailed a copy of the CF 4333-A to both parties.

Customs liquidated the entry on March 23, 2001.

ISSUE:

Did Customs erroneously or improperly deny AFR number 1001-01-102230?

LAW AND ANAYLSIS:

Title 19, United States Code, section 1515 (19 U.S.C. §1515(c)), reads in relevant part:

If a protesting part 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 . . . 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 criteria for further review is set out in 19 CFR §174.24, which reads:

Further review of a protest which would otherwise be denied by the port director shall be accorded a party filing an application for further review which meets the requirements of §174.25 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; 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.

In your letter, you also cite 19 CFR §174.26(b)(1)(i), (iii) and (iv), which reads:

Other protests. If upon examination of a protest for which an application for further review was filed the port director decides that the protest in his judgment should be denied in whole or in part, he shall forward the application together with the protest and appropriate documents to be reviewed as follows:

A protest shall be reviewed by the Commissioner of Customs or his designee . . . if the protest and application for review raise an issue involving either:

Lack of uniformity of treatment;

The interpretation of a court decision or ruling of the Commissioner of Customs or his designee; or Questions which have not been the subject of a Headquarters, U.S. Customs Service ruling or court decision.

You state that the memorandum in support of the AFR raised new issues and facts that had not been previously presented to Headquarters, to wit:

The fact that HQ 964430 ignored at least one jacket characteristic (the sleeves do not have cuffs);

The weight of the fabric;
Arguments based on HQ 963439, dated June 25, 2001.

However, in the IA decision (HQ 964430) we stated:

[T]he importer’s counsel states that the subject merchandise has four Guidelines features i.e., pockets below the waist, fabric over 10 ounces per square yard, heavy duty zipper, and long sleeves without cuffs. . .

[T]he garment does have pockets below the waist yet, testing by U.S Customs reveals the fabric weight to be of 9.35 ounces per square yard and thus below the Guidelines standard. The garment’s zipper is not considered “heavy” nor is there a tightening at the bottom of the cuffs or bottom of the jacket . . .

On page five, we noted “the lack of any tightening at the bottom of the subject merchandise and also the lack of a ribbed knit waistband.”

We also noted on page 2 of HQ 964430 that our office received conflicting information on the exact fiber content of the garment as well as the country of origin. In that ruling, we adhered to Customs laboratory findings that the garment’s fabric weight was 9.35 ounces per square yard. Since both AFR 1001-01-102230 and HQ 964430 list the same style number for the garment, Customs assumes that the garments are identical in all material respects and that Customs laboratory findings were correct.

Additionally, you argue that the memorandum in support of AFR 1001-01-102230 raised new arguments based on HQ 963439, dated June 25, 2001. However, the garment is that case is not similar to the instant garment. Accordingly, decision in HQ 963439 is not relevant to the merchandise at issue in the instant AFR and is not a basis for setting aside the denial of the protest.

Furthermore, we disagree with you that review of the protest is required because Customs approved another protest concerning the same merchandise as that in the instant AFR. The Request for Internal Advice was filed on January 21, 2000. Thereafter, your client filed protest number 1001-00-101389, which Customs granted on May 12, 2000. That protest should have been suspended pending the IA decision (HQ 964430). In any event, HQ 964430, dated August 17, 2000, was dispositive of the classification issue.

Finally, your claim that the entries in question were liquidated as entered by operation of law, pursuant to 19 U.S.C §1504(a), is also without merit. As shown in the facts portion of this ruling, Customs records establish that the
entries in question were extended by Customs on February 12, 2000, within one year from the date of entry of the merchandise. Moreover, notice of the extension was mailed to the importer, as required under 19 U.S.C. §1504(c) and 19 CFR §159.12(b).

HOLDING:

Denial of AFR 1001-01-102230 was proper, based on the information before the Customs Service at the time the AFR was denied.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division

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