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.
FACTS:
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.
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. 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.
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