CLA-2 CO:R:C:M 950617 NLP

Mr. Robert Burke
Ms. Michele McGuire
Barnes, Richardson & Colburn
200 East Randolph Drive
Chicago, IL 60601

RE: Reconsideration of Protest 2704-90-04153; Authority to review protest after denial

Dear Mr. Burke and Ms. McGuire:

This is in response to your letter dated June 25, 1991, on behalf of Candle Corporation of America, requesting the reconsideration of Headquarters Ruling Letter 088123, dated February 25, 1991, in which Customs denied a protest dealing with the classification of glass containers.

FACTS:

In HRL 088123, dated February 25, 1991, we issued a decision on Protest and Request for Further Review No. 2704-90-04153 concerning the classification of glass containers imported from Ecuador. Candle Corporation of America argued that the goods should be classified in subheading 7010.90.50, HTSUSA, as other glass containers. In HRL 088123, we classified the containers in subheading 7013.29.10, HTSUSA, as drinking glasses. Radix Group International, agent of Candle Corporation of America, was notified on Customs Form 19, dated February 28, 1991, of the denial of the protest and a copy of HRL 088123 was furnished to them.

ISSUE:

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

LAW AND ANALYSIS:

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. 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. 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 The protestant claimed that timeliness was not at issue because the denial of the first protest was rescinded pursuant to its request to do so under 19 U.S.C. 1520(c).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. 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 is clear and explicit in its meaning. The ruling has not been qualified by any exceptions or exclusions. The critical fact in this case, as it was in the previous one, is that the denial 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. The protestant's recourse at that point was to either initiate action in the Court of International Trade or abandon the protest. Therefore, Customs lacks authority to reconsider and rescind protest denials.

HOLDING:

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.

Sincerely,

John Durant, Director
Commercial Rulings Division