Reconsideration of HRL 089267; Authority to review protest after denial; San Francisco Newspaper Printing Co.; action before Court; 19 CFR 174.31

HQ 953510 June 30, 1992 CLA-2 CO:R:C:M 953510 KCC CATEGORY: Classification John Donohue, Esq. Donohue and Donohue 232 South Fourth Street Philadelphia, PA 19106 RE: Reconsideration of HRL 089267; Authority to review protest after denial; San Francisco Newspaper Printing Co.; action before Court; 19 CFR 174.31 Dear Mr. Donohue: This is in response to your letter dated February 19, 1993, on behalf of Bondioli & Pavesi, Inc., requesting reconsideration of Headquarters Ruling Letter (HRL) 089267 dated August 9, 1991, in which Customs denied a protest dealing with the classification of drive shafts. FACTS: In HRL 089267 dated August 9, 1991, we issued a decision on Protest and Request for Further Review No. 1901-1-100015 concerning the classification of drive shafts under the Harmonized Tariff Schedule of the United States (HTSUS). On behalf of Bondioli & Pavesi, you argued that the drive shafts should be classified under subheading 8433.90.50, HTSUS, as agricultural implements. In HRL 089267, we classified the drive shafts under subheading 8483.10.50, HTSUS, as transmission shafts. As counsel for Bondioli & Pavesi, you were notified on Customs Form 19, dated September 13, 1991, of the denial of the protest and a copy of HRL 089297 was furnished to you. ISSUE: Whether 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 The protestant claimed that timeliness was not at issue because the denial of the first protest was rescinded pursuant to its request to do so under 19 U.S.C. section 1520(c).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. The protestant's only recourse after denial of a protest is to either initiate action in the U.S. Court of International Trade within the statutory time limits 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 within 180 days after- (a) The date of mailing of notice of denial, in whole or in par, of a protest, or (b) The date a protest, for which accelerated disposition was requested, is deemed to have been denied in accordance with section 174.22(d)." You stated that no challenge to the decision in HRL 089267 was filed in the U.S. Court of International Trade. Therefore, the protestant's right to judicial review of the denial of the protest has lapsed. 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