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HQ 964950




February 1, 2002

CLA-2 RR:CR:TE 964950 TF

CATEGORY: CLASSIFICATION

TARIFF NO.: 6103.42.1020

Port Director
US Customs Service
6601 NW 25th Street
Miami, Florida 33152

RE: Request for Further Review of Protest Number 5201-00-100554; Heading 6103 and 6107; Men’s Sleepwear; Men’s Loungewear; 19 C.F.R. § 174.24

Dear Port Director:

This letter concerns our response to an Application for Further Review of Protest Number 5201-00-100554, that was timely filed on November 2, 2000 by Counsel Elon Pollack on behalf of LCA Intimates, contesting the classification and liquidation made on August 4, 2000 of certain men’s cargo and lounge pants, under the Harmonized Tariff Schedule of the United States (HTSUS). You forwarded to our office this Application on January 25, 2001.

We have considered this protest and our decision follows.

FACTS:

The merchandise at issue consists of thirteen entries of men’s lounge and cargo pants, designated as Style numbers 474W and 475W, that are composed of 60 percent cotton and 40 percent polyester knit fabric.

On August 4, 2000, Customs liquidated the subject entries of merchandise within subheading 6103.42.1020, HTSUS, which provides for: “[m]en’s or boy’s suits, ensembles, suit-type jackets, blazers, trousers, bib and brace overalls, breeches and shorts (other than swimwear), knitted or crocheted: Trousers, bib and brace overalls, breeches and shorts: Of cotton: Trousers, breeches and shorts: Trousers and breeches: Men’s.”

Protestant disputes Customs’ classification and asserts that the merchandise should be classified in subheading 6107.91.0030, HTSUS, which provides for: “[m]en’s or boy’s underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles, knitted or crocheted: Other: of Cotton: Sleepwear.” Counsel’s reason for this classification is based on three arguments as follows:

The subject garments are designed, manufactured, and intended to be used as night wear, namely to be worn to bed. The subject garments are made of lightweight fabric and designed to be worn against the skin. The subject garment’s fly opening construction would be inappro-priate to be worn outside the bedroom or in mixed company.

ISSUE: Whether the Application of Further Review of Protest No. 5201-00-100554 is sufficient to merit review by Headquarters pursuant to 19 C.F.R. § 174.24.

LAW AND ANALYSIS:

The criteria required for the granting of a request for further review are set forth in 19 C.F.R. §174.24 of the Customs Regulations. This section states, in pertinent part, that further review of a protest which otherwise would be denied by the Port Director 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 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.

In this instance, Protestant cites the justification for further review on the basis of 19 CFR 174.24(c). However, the Protestant has not provided any statement or evidence to substantiate that this protest involves facts or legal arguments which have not been considered by the Commissioner of Customs, his designee or by the Customs Courts, in previously ruling on this matter.

Therefore, as the Protestant fails to meet the criteria of 19 CFR 174.24(c), the Protestant’s request for further review should not have been granted.

HOLDING:

The Protestant has failed to meet the requirement of 19 C.F.R. § 174.24(c). Accordingly, the Application for Further Review of Protest No. 5201-00-100554 should not have been granted. Accordingly, the protest file is being returned for appropriate action by your office. For your information, we agree with your classification recommendation. If upon your review, you still hold that opinion, the protest should be denied.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office, with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to the mailing of this decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division


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