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HQ 951933

August 18, 1992

CLA-2 CO:R:C:M 951933 KCC


S. Richard Shostak, Esq.
Stein, Shostak, Shostak & O'Hara
Suite 807
1620 L Street, N.W.
Washington, D.C. 20036-5606

RE: Reconsideration of 089401; Authority to review protest after denial; San Francisco Newspaper Printing Co.; action before U.S. Court of International Trade; 19 CFR 174.31; 19 CFR 177.7(b); 19 CFR 177.2(b)(5)

Dear Mr. Shostak:

This is in response to your letter dated May 18, 1992, on behalf of Joan Baker Designs, Inc., requesting reconsideration of Headquarters Ruling Letter (HRL) 089401 dated September 4, 1991, in which Customs denied a protest dealing with the classification of suncatchers.


In HRL 089401 dated September 4, 1991, we issued a decision on Protest and Request for Further Review No. 2704-90-04750 concerning the classification of suncatchers under the Harmonized Tariff Schedule of the United States (HTSUS). Joan Baker Designs argued that the suncatchers should be classified under subheading 9701.10.00, HTSUS, as paintings executed entirely by hand or under subheading 7016.10.00, HTSUS, as glass smallware for mosaics and similar decorative purposes. In HRL 089401, we classified the suncatchers under subheading 7013.99.50, HTSUS, as glassware used for indoor decoration. Donald Harrison, Esq., of Gibson, Dunn & Crutcher, who filed the protest on behalf of Joan Baker Designs, was notified on Customs Form 19, dated October 4, 1991, of the denial of the protest and a copy of HRL 089401 was furnished to them.


Whether a decision on a protest that has been denied and issued to the protestant can be reconsidered.


The Court of International Trade has addressed the issue of whether or not Customs may rescind the denial of a protest after it has been issued to the protestant. In San Francisco Newspaper Printing Co. v. United States, 9 CIT 517, 620 F. Supp. 738 (1985), an importer filed a protest for further review subsequent to the denial of a first protest. The second protest was denied as well and Customs determined, without action, that the first protest should have only been denied in part. The protestant brought action against Customs contesting the denial of both protests pursuant to 19 U.S.C. section 1515. Customs sought to dismiss part of the action for lack of timeliness, contending that the protestant did not file the action within 180 days of mailing of notice of denial as required under 28 U.S.C. section 2636(a)(1). The protestant claimed that timeliness was not at issue because the denial of the first protest was rescinded pursuant to its request to do so under 19 U.S.C. section 1520(c). Customs had not formally responded to the request, however. The pivotal question became whether or not Customs had the authority to rescind the denial of a protest after it had been mailed.

The court held that Customs does not have the authority under 19 U.S.C. section 1515 to exercise jurisdiction over a protest after it has been denied. Therefore, a protest is beyond the jurisdiction of Customs after it has been denied. The language of the court is clear and explicit in its meaning; it has not been qualified by any exceptions or exclusions. The critical fact in your request for reconsideration, as it was in the San Francisco case, is that the denial of the protest has already been mailed and received. Thus, the importer has actual notice of the decision. Customs jurisdiction over the case ended once the protest was denied.

As you are well aware, the protestant's recourse at this point is to either initiate action in the U.S. Court of International Trade or abandon the protest. See, section 174.31, Customs Regulations (19 CFR 174.31), which states "Any person whose protest has been denied, in whole or in part, may contest the denial by filing a civil action in the U.S. Court of International Trade in accordance with 28 U.S.C. 2632...." We have learned that you have already initiated an action on behalf of the protestant in the U.S. Court of International Trade in court number 92-03-00204 dated March 25, 1992.

As this action is presently before the U.S. Court of International Trade, Customs does not have the authority to issue a ruling letter. See, section 177.7(b), Customs Regulations (19 CFR 177.7(b)), which states that "No ruling letter will be issued with respect to any issue which is pending before the U.S. Court of International Trade..."

Furthermore, as you are aware, section 177.2(b)(5), Customs Regulations (19 CFR 177.2(b)(5)), states that "Each request for a ruling must state whether, to the knowledge of the person submitting the request,...the issues involved have ever been considered, or are currently being considered, by the U.S. Court of International Trade...." The summons for the court case initiated by your firm is dated March 25, 1992, and your ruling request is dated May 18, 1992, however, no statement as to your pending action with the U.S. Court of International Trade was made in your ruling request.


Customs may not rescind a decision to deny a protest for further review once the decision has been issued to the party in interest. Therefore, your request for reconsideration is denied.


John Durant, Director

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