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HQ 087980


December 19, 1990

CLA-2 CO:R:C:G 087980 JMH

CATEGORY: CLASSIFICATION

TARIFF NO.: 8425.49.00

District Director
U.S. Customs Service
Patrick V. McNamara Building Suite 200
477 Michigan Ave.
Detroit, MI 48266

RE: Protests 3801-9-001450 and 3801-9-001451; Headquarters Ruling Letter 085939; Application for Further Review not made; jack handles

Dear Sir:

A request has been made for our reconsideration of Headquarters Ruling Letter 085939 ("HQ 085939"), dated June 18, 1990, which concerned Protests 3801-9-001450 and 3801-9-001451. Our response follows.

FACTS:

On March 21, 1989 Protests 3801-9-001450 and 3801-9-001451 were filed at your port concerning the classification of certain automobile jack handles. The protests were timely filed for their subject entries. Neither protest contained an Application for Further Review. On May 17, 1989 an additional submission was filed by the protestant. This submission included a request that the protest be sent forward for further review by Headquarters.

The May 17, 1989 request for further review, although occurring more than 90 days after all but one entry was liquidated, was treated by your office as a permissible Application for Further Review for all the entries. This of course was improper because 19 U.S.C. 1515 requires that requests for further review must be filed within the time limit prescribed in 19 U.S.C. 1514.

On August 17, 1989 your office recommended that the request for further review be approved and that the protest be denied. On September 6, 1989 the request for further review was approved. The protests were forwarded to Headquarters on September 15, 1989 with a recommendation that they be denied.

Headquarters failed to take note of the fact that the protests were erroneously forwarded. Thus, we considered the matter which resulted in the decision of HQ 085939. This ruling concurred with the importer that the jack handles should be classified in subheading 8425.49.00, Harmonized Tariff Schedule of the United States Annotated ("HTSUSA"). However, HQ 085939 denied the protest on all but one entry. The protests were deemed to be untimely filed because the request for further review was made over 90 days after all but the one entry were liquidated.

ISSUE:

Whether the protests for the entries liquidated more than 90 days prior to the importer's request for further review were properly denied in HQ 085939.

LAW AND ANALYSIS:

Customs Regulations provide that a protesting party may seek further review of a protest, but that such a request must be filed within 90 days from the date of liquidation or the date of the decision which is being protested. Customs Regulations 174.23, 174.12(e), 19 C.F.R. 174.23, 174.12(e). The regulations allow that a protesting party may seek further review of a protest in lieu of review by the District Director by filing an application for further review. Customs Regulation 174.23. An application for further review may be made by checking box number seven on the protest form, Customs Form 19. Such an application requires that the District Director forward the protest to Headquarters if the District Director would deny the protest in whole or in part.

Additionally, the District Director may obtain guidance or advice from Headquarters by the internal advice process. Customs Regulation 177.11(a), 19 C.F.R. 177.11(a). Customs Service field offices may request internal advice from Headquarters at any time, whether the transaction in question be prospective, current or completed.

It is evident from the record that the District Director believed that the protests in question should be denied in full. The District Director treated the protests as if an application for further review had been made and forwarded the protests to headquarters. However, box number seven on the protests was not checked. A proper application for further review was never made regarding the subject protests. The protests should not have been forwarded to Headquarters.

It appears that the port was unsure of the correct classification for the jack handles. The District Director had the authority under the regulations to request internal advice from Headquarters concerning the correct classification. There was no authority under the Customs Regulations for the District Director to send protests to Headquarters for further review when the protestant had not applied for such review.

Since the Customs Regulations do not give this office jurisdiction to decide protests lacking applications for further review, HQ 085939 should not have been issued. HQ 085939 is revoked as to the determination of the disposition of the protests. However, we affirm the classification of the jack handles in subheading 8425.49.00, HTSUSA.

HOLDING:

When an application for further review of a protest has not been made, the regulations do not give the District Director authority to forward the protest to Headquarters for disposition. If an issue arises in a protest upon which the field office needs advice or guidance, then such information may be obtained through the internal advice process.

Protests 3801-9-001450 and 3801-9-001451 were forwarded to Headquarters for further review after the time for such action had expired. Headquarters did not have the authority to resolve the protests as occurred in HQ 085939. HQ 085939 is revoked as to the disposition of the protests. However, the classification of the subject jack handles in subheading 8425.49.00, HTSUSA, is affirmed. You should treat the two protests accordingly.

Sincerely,

John Durant, Director
Commercial Rulings Division

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