HQ 0220997 - Savannah Protest No. 1703-87-000101; 19 CFR 174.26(b)(1); 19 CFR 174.26(b)(2); San Francisco Newspaper Printing Co. v. U.S.; Sea-Land Services, Inc. v. U.S. - United States International Trade Commision Rulings

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HQ 220997

January 25, 1989

PRO-4-CO:R:C:E 220997 C

CATEGORY: ENTRY LIQUIDATION

Paul S. Anderson
Sonnenberg, Anderson, O'Donnell & Rodriguez 200 West Adams Street
Suite 2625
Chicago, Illinois 60606

RE: Savannah Protest No. 1703-87-000101; 19 CFR 174.26(b)(1); 19 CFR 174.26(b)(2); San Francisco Newspaper Printing Co. v. U.S.; Sea-Land Services, Inc. v. U.S.

Dear Mr. Anderson:

This responds to your letter of October 18, 1988, concerning the referenced subject.

By memorandum of January 25, 1989, we requested a report from the Savannah District Office regarding the referenced protest. A response, dated February 15, 1989, was received. We apologize for the delay in responding to your request to review the denial of the protest.

The merchandise in question was entered on February 24, 1987. The entry was liquidated on June 19, 1987. The referenced protest and application for further review (AFR) was timely filed on July 15, 1987. On September 2, 1987, the district director submitted the protest to the regional commissioner, recommending that the protest be denied. On September 25, 1987, the protest was returned to the district director with instructions to notify the PROTESTANT of the denial. The Deputy Assistant Regional Commissioner for Classification and Value indicated that the protest did not meet the requirements for further review. Subsequently, on February 24, 1988, the district director denied the protest.

You have alleged that your client received the denial of the protest in May of 1988, only after contacting the district office and requesting a copy. You further allege that it was some undisclosed time later that your client received reasons for the denial, again after having to request same.

The Savannah District Office reported that records are not kept to verify dates of mailed protest determinations. However, it is the standard practice of the district office to forward a copy of protest determinations to protestants. The district office reported that inquiries regarding non-receipt of protest determinations are "very few." It is also the practice of the district office to include reasons for the denial of a protest.

The Customs Regulations, Title 19, Code of Federal Regulations, govern the protest procedure. (See 19 C.F.R., Part 174, implementing 19 U.S.C. 1514.) A protest/AFR filed with a district director shall be submitted to Customs Headquarters in certain circumstances. 19 C.F.R. 174.26(b)(1). Where those circumstances are not evident, the protest/AFR shall be submitted to the regional commissioner. 19 C.F.R. 174.26(b)(2). In the instant case, the district director submitted the protest to the regional commissioner. The regional commissioner determined that the issue did not qualify for further review under 19 C.F.R. 174.24 and returned the protest to the district director to be disposed of in accordance with 19 C.F.R. 174.29. On February 24, 1988, the district director executed the CF 19 denying the protest. A copy of the CF 19 in the file shows that the denial was based on : 1) the inapplicability of further review and 2) the assertion that the merchandise was properly classified and liquidated. Reference was made in the denial to Customs Headquarters ruling letter 024303.

You challenge the correctness of the protest denial and assert that your client has been wrongfully denied the opportunity to have Customs Headquarters review and rule on the legal issues presented in the protest. This is indeed a challenge to the regional commissioner's determination that the further review procedure was inapplicable. Consequently, you request that Customs Headquarters review the denial of the protest and, if determined to be improper, consider the protest anew.

Upon denial of a protest, whether it be a simple protest or one requesting further review, a protestant can choose one of two courses: 1) abandon the matter, or 2) bring an action in the Court of International Trade. San Francisco Newspaper Printing Co. v. United States, 620 F. Supp. 738, 9 CIT 517 (1985). (See also 19 U.S.C. 1514(a); 19 C.F.R. 174.31.) Customs Regulation 174.31 provides that a protestant can file such an action within 180 days of the date the denial was mailed. 19 C.F.R. 174.31. Under 19 C.F.R. 174.30, the date appearing on the denial shall be considered the date of mailing. In the instant case, the date appearing on the denial is February 24, 1988. Your client's only recourse then was to file an action with the court within 180 days of the foregoing date. Once a protest is determined by Customs, it no longer maintains jurisdiction over the matter. Customs lacks statutory or regulatory authority for the review you seek. (On the subject of whether or not Customs action in this case warrants vacatur of the notice of denial or a tolling of the statute of limitations for filing an action in the Court of International Trade, see Sea-Land Service, Inc. v. United States, No.85-07-00910, slip op. 90-34 (CIT April 2, 1990).)

Again, we apologize for the delay in responding. If you have any further questions, please contact this office.

Sincerely,

John Durant, Director

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