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HQ 963781




October 6, 2000

CLA-2 RR:CR:TE 963781 RH

CATEGORY: CLASSIFICATION

TARIFF NO.: 4411.19.4000

Port Director
U.S. Customs Service
6 World Trade Center, Room 761
New York, NY 10048

Attn: Chief, Residual Liquidation and Protest Branch

RE: Protest Number 1001-99-101893

Dear Sir:

This is in reply to your memorandum of February 29, 2000, forwarding Application for Further Review of Protest (AFR) number 1001-99-101893 to our office for a decision.

FACTS:

The protest at issue is against the reliquidation of three entries covering fiberboard flooring under subheading 4411.19.4000 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Upon importation, the protestant classified the merchandise under subheading 4411.19.3000, HTSUSA, as tileboard.

The flooring is sold by Witex, Germany and is invoiced to Witex U.S.A. for delivery to the protestant, Mannington Mills.

We note that Customs issued a protest decision to Witex, U.S.A. (Headquarters Ruling Letter (HQ) 960084, dated December 10, 1997), which addressed the same classification issue raised in the instant protest. In HQ 960084, our office denied the protest and upheld Customs classification of the fiberboard flooring under subheading 4411.19.4000, HTSUSA. A lawsuit subsequently filed by Witex U.S.A. concerning the classification of identical or substantially similar merchandise is currently pending in the Court of International Trade, Witex U.S.A. v. United States, Civil Action No. 98-02-00360.

Issue:

Does AFR 1001-99-101893 satisfy the criteria for further review under 19 CFR §174.24?

LAW AND ANALYSIS:

Section 174.24 of the Customs Regulations (19 CFR §174.24) lists the criteria for granting an AFR. It states that an AFR will be granted 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 of the original ruling; or

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.

Under Section III of the Protest (Customs Form 19), the portestant lists three factual or legal arguments justifying further review of its protest:

(a) The imported product is designed, intended for use and marketed as tileboard. (b) It has been classified within the specification of tileboard by American Hardwood Association. (c) We have not made a prior request to the District Director, we have not received an adverse decision nor do we have pending a claim before the U.S. Court of International Trade; and (d) We have neither received an advance [sic] decision from the Commissioner of Customs nor do we have a pending application for an administrative decision on such claim.

While the information provided by the protestant is required to be on the CF 19 under 19 CFR §174.25, none of the reasons listed satisfy the criteria for further review. Moreover, since Customs has already ruled on the issue raised in the instant protest, and that issue is also pending before the Court of International Trade, pursuant to 19 CFR §174.24(b), further review of AFR 1001-99-101893 is not warranted.

Part E to Customs Directive 099 3550-065, dated August 4, 1993, explains the procedures to be followed when a protest is filed that involves issues which are pending in the Court of International Trade. It reads in pertinent part:

SUSPENSIONS

Protests should only be suspended if there is a test case before the Court of International Trade (CIT), an Application for Further Review (AFR) has been granted, or an internal advice request is before Headquarters on the exact same issue.

If after IST review of a protest where a test summons pending before the CIT is cited as the basis for the protest, the IST determines it is a valid claim, the entry unit must enter the test summons number into the "Test Summons No." data field; enter "S" for suspension into the "Status" field; and enter the date into the "Decided" field (PMAC).

Since the issue in the instant protest is currently pending in the Court of International Trade, and the protestant has asked that it be suspended in accordance with the above provisions, we find that review of the AFR by Headquarters is not warranted.

HOLDING:

Protest number 1001-0-99-101893 does not meet the criteria for further review under 19 CFR §1 74.24. The entries under AFR 1001-99-101893 should be suspended pending the court’s determination in Witex U.S.A. At that time, the entries should be reliquidated in accordance with the judgment order of the CIT, pursuant to 19 CFR §152.16.

Sincerely,

John Durant, Director
Commercial Rulings Division

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