Review of Denial of Protest/Application for Further Review 5201-99-100001

HQ 962552 May 3, 1999 CLA-2 RR:CR:TE 962552 CATEGORY: Classification David M. Murphy, Esq. Grunfeld, Desiderio, Lebowitz & Silverman, LLP 245 Park Avenue 33rd Floor New York, NY 10167-3397 RE: Review of Denial of Protest/Application for Further Review 5201-99-100001 Dear Mr. Murphy: This is in reply to your letter of February 8, 1999, on behalf of Bauer USA, Inc., requesting our office to set aside the denial of Protest and Application for Further Review (AFR) number 5201-99-100001. FACTS: The protest at issue is against the classification of ice hockey pants as sports clothing under heading 6211 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Customs denied the protest and AFR on January 26, 1999. The CF 19 states that the AFR was denied because it did not meet the criteria in 19 CFR §§174.24 and 174.25. We initially note that the request to set aside the denial of the protest and AFR under 19 U.S.C. §1515(c) was timely filed within 60 days after the date of the notice of denial. You argue that further review of the protest is warranted because it alleges questions of law and fact that have not been ruled upon by the Commissioner of Customs or his designee or it involves matters previously ruled upon but the facts alleged and legal arguments presented were not considered at the time of the original rulings. ISSUE: Does AFR 5201-99-100001 satisfy the criteria for further review under 19 CFR §§174.24 and 174.25, and if so, should the denial of the protest be set aside?  - 2 - LAW AND ANALYSIS: Customs’ authority to set aside the denial of a protest is set forth in 19 U.S.C. §1515(c), which reads, in part: 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 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 criteria required for the granting of a request for further review are set forth in 19 CFR §174.24. This section states, in pertinent part, that further review of a protest shall be accorded to a party filing an application for further review which meets the requirements of §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 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; (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 §177.11(b)(5) of this chapter. Upon review of the AFR, we find that it contains questions of fact not previously ruled upon and, therefore, satisfies the criteria in section (c) above. However, we note that your firm filed another AFR, number 0201-98-100029, on behalf of Bauer USA, Inc., at the Port of St. Albans, addressing the same issues raised in the instant AFR. Customs granted the AFR in that case under 19 CFR 174.24 and forwarded the matter to our office for review; it is referenced as Headquarters Ruling Letter (HQ) 962072.  - 3 - In accordance with sections “D” and “E” of Customs Directive 099-3550-065, dated August 4, 1993, approval of an AFR sent to the Office of Regulations and Rulings for review should be designated as the “lead” protest and subsequent protests filed on the same class of merchandise should reference the “lead” protest. The “lead” protest and “suspended” protests may be filed at different ports. Accordingly, AFR number 0201-98-100029 filed at the Port of St. Albans is the lead protest concerning the merchandise at issue. Additionally, we note that in Section V of the instant AFR (CF 19), you stated that a “prior request of a district director for a further review of the same claim with respect to the same or substantially similar merchandise” had been made. Since an AFR had been filed on the same class of merchandise at the Port of St. Albans and fowarded to our office for review, AFR 5201-99-100001 should have been granted and the protest should have been suspended pending the decision in the “lead” protest in accordance sections “D” and “E” of Customs Directive 099-3550-065. HOLDING: The request for relief under 19 U.S.C. §1515(c) is approved and the denial of the AFR by the port director should be set aside and the protest suspended pending resolution of lead protest 0201-98-100029 (HQ 962072). Sincerely, John Durant, Director Commercial Rulings Division