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.
FACTS:
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.
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.
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...."
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