Denial of Further Review of Protest 4909-99-100070; Criteria for Further Review; 19 CFR §174.24;

HQ 963319 May 15, 2000 CLA2 RR:CR:GC 963319 JGB CATEGORY: Protest Mr. Hampton P. Carter Supervisory Import Specialist U.S. Customs Service #1, La Puntilla San Juan, Puerto Rico 00901 RE: Denial of Further Review of Protest 4909-99-100070; Criteria for Further Review; 19 CFR §174.24; Dear Sir: This is in response to your memorandum dated December 14, 1999, transmitting to Customs Headquarters an application for further review of subject protest. Our review of the information available to the Port Director at the time the protestant requested further review indicates that Further Review should have been denied for the reasons indicated infra. The protestant filed the same request on the same type of merchandise during approximately the same time period at the Port of Los Angeles, CA. In that instance the Protest was denied and the Application for Further Review was also denied. The protestant then requested Headquarters to set aside the denial of further review. A copy of our response to the protestant, affirming the actions of the Port Director and denying relief is enclosed, for your information. Section 174.24 of the Customs Regulations (19 CFR §174.24) sets forth the criteria that must be met in order for a protest to warrant further review. In relevant part, Section 174.24 states as follows: 174.24 Criteria for further review. Further review of a protest which would otherwise be denied by the port director 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: * * * * * 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. Thus, in order to determine whether the Application for Further Review was properly allowed, we must examine the decision against which the Protest was filed. In this case, the Protest was against Customs’ decision to classify certain watches under subheading 9102.91.20, Harmonized Tariff Schedule of the United States (HTSUS). The protestant contends that the Protest involves facts concerning the physical characteristics, uses, and condition of sale of the articles in question in the context of the analytical framework prescribed by the courts. Although we agree that this case involves questions of fact, the answers to the question have been ruled upon by the Commissioner of Customs’ designee. On October 28, 1998, counsel acting on behalf of the Protestant requested a classification ruling on the goods which are the subject of the protest. In NY D84205 dated November 3, 1998, the Director, National Commodity Specialist Division, determined that the goods were classifiable in subheading 9102.91.20, HTSUS. We are aware of no request for reconsideration of this ruling. Subsequently, on the Customs Form 19 in which the Customs classification was protested, the attorney on behalf of the protestant checked “NO” in Block 14(c) to the question, “Have you previously received an adverse administrative decision from the Commissioner of Customs or his designee or have you presently pending an application for an administrative decision on the same claim with respect to the same category of merchandise?” He knowingly incorrectly completed the protest and accordingly does not meet the grounds for further review of protests set forth in 19 CFR §174.25(b)(2)(i). Headquarters review of the record before the Port Director at the time of allowance of the Application for Further Review has led us to the conclusion that the port’s decision was inadvertently inconsistent with the information provided and not in accordance with the existing directives. Accordingly, further review will not be allowed. You are further directed to deny the protest. Sincerely, John Durant, Director Commercial Rulings Division Enclosure