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HQ 956467

June 1, 1994
CLA-2 CO:R:C:M 956467 KCC



David J. Evan
Grunfeld, Desiderio, Lebowitz & Silverman 245 Park Avenue
New York, New York 10167-0002

RE: Reconsideration of 954292; 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. Evan:

This is in response to your letter dated May 17, 1994, on behalf of Apex Universal, Inc., requesting reconsideration of Headquarters Ruling Letter (HRL) 954292 dated October 29, 1993, in which Customs denied a protest dealing with the classification of ceramic pavement markers.


In HRL 954292 dated October 29, 1993, we issued a decision on Protest 2704-92-102759 concerning the classification of ceramic pavement markers under the Harmonized Tariff Schedule of the United States (HTSUS). Apex Universal, Inc. argued that the ceramic pavement markers were classifiable under subheading 6904.90.00, HTSUS, as other ceramic building bricks, flooring blocks, support or filler tiles and the like or, alternatively, under subheading 6905.90.00, HTSUS, as other ceramic constructional goods. In HRL 954292, we classified the ceramic pavement markers under subheading 6908.90.00, HTSUS, as other glazed ceramic flags and paving, hearth or wall tiles. The Los Angeles Office of Grunfeld, Desiderio, Lebowitz & Silverman, which filed the protest on behalf of Apex Universal, Inc., was notified on Customs Form 19, dated November 9, 1993, of the denial of the protest and a copy of HRL 954292 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.

At this time, the protestant's recourse 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...."


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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