Application for Further Review; Protest 10001-98-105372

HQ 963691 October 6, 2000 CLA-2 RR:CR:TE 963691 BAS CATEGORY: Protest Port Director Port of New York c/o Chief, Residual Liquidation and Protest Branch 6 World Trade Center Room 761 New York, New York 10048-0945 RE: Application for Further Review; Protest 10001-98-105372 Dear Madame or Sir: This letter concerns an Application for Further Review (AFR) of protest No. 1001-98-105372, filed on December 14, 1998, concerning the classification and liquidation of an entry of men’s nylon woven ski jackets made on January 27, 1998. You classified the merchandise under subheading 6203.32.3210, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). In the December 14, 1998 protest, the protester argued that several of the items in the entry were water resistant and therefore should have been classified under subheading 6211.20.1515. Review of the documents in the file indicates that on November 18, 1999 the U.S. Customs Service, New York requested that all samples from the shipment covered by entry 004-7664885-2 which were claimed to be water resistant be forwarded within 30 days in order to qualify for consideration of the protest. The importer did not submit any samples required by Customs making it impossible to determine the water resistance in the jackets. Pursuant to 19 CFR Part 174.24 (Criteria for further review), 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 (AFR) which meets the requirements of section 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 or the original ruling; or Is alleged to involve questions within 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. Absent a statement of facts or additional legal arguments upon which the protesting party relied to justify further review, the AFR fails to meet the requirements of section 174.25. An application for further review shall contain inter alia: A statement of any facts or additional legal arguments, not part of the record, upon which the protesting party relies, including the criterion set forth in § 174.24 which justifies further review. A showing of facts that support the allegation of a criterion set forth in § 174.24 (c) will constitute a ground for the granting of further review in circumstances where the applicant’s inability to affirmatively make the allegations described n paragraph (b)(2) of this section would otherwise result in its denial. 19 CFR Part 174.25 (b)(3). While the protester has made the bald assertion that the protest “involves a previous ruling, different facts or legal arguments that are presented that were not considered at the time of the original rulings and/or the decision involves questions that Customs Headquarters has refused to consider in a request for internal advice,” the Protestant has not presented any evidence or additional legal arguments in support of its assertions. The Protestant has also failed to provide the samples requested which would provide the basis for resolution of the classification at the port level. Based on the foregoing discussion, this protest should be DENIED IN FULL. Sincerely, John Durant, Director Commercial Rulings Division