HQ 0223409 - Application for Further Review of Protest No. 2904-7- 000241; Suspension of Protest; 19 CFR 174.13(a)(7); Mitsui Foods, Inc. v. United States, 12 CIT 276 (1988). - United States International Trade Commision Rulings

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HQ 223409
December 23, 1991

PRO-2-05-CO:R:C:E 223409 SR

CATEGORY: ENTRY PROTEST

District Director of Customs
511 N.W. Broadway Federal Building
Portland, Oregon 97209

RE: Application for Further Review of Protest No. 2904-7- 000241; Suspension of Protest; 19 CFR 174.13(a)(7); Mitsui Foods, Inc. v. United States, 12 CIT 276 (1988).

Dear Sir:

The above-referenced protest was forwarded to our office on Application for Further Review of Protest No. 2904-7-000241; dated August 20, 1987. We have considered the facts and the issue raised; our decision follows.

FACTS:

The protestant imported tuna that was canned in American Samoa. The tuna was classified by Customs under item 112.34, Tariff Schedules of the United States (TSUS), which provides for fish, prepared or preserved in any manner, not in oil, in airtight containers, tuna, other, with a 12.5 percent ad valorem rate of duty. The protestant claims that the tuna should have been classified under item 112.30, TSUS, which provides for Fish, prepared or preserved in any manner, not in oil . . . and not the product of any insular possession of the United States, for an aggregate quantity entered in any calender year not to exceed 20 percent of the United States pack of canned tuna during the immediately preceding calendar year as reported by the National Marine Fisheries Service, at a 6 percent ad valorem rate of duty.

The protestant is also requesting a suspension of action on the protest until the issue of whether tuna canned in American Samoa ia "United States pack." At the time this protest was filed the issue was the subject of a ruling request made by another party and was pending before the United States Court of International Trade.

ISSUE:

Whether a protest and application for further review can be suspended.

LAW AND ANALYSIS:

Headquarters Ruling Letter 076096 dated May 22, 1985, dealt with this issue. This ruling stated that the authority to suspend action on a protest, as set forth in 19 CFR 174.13(a)(7), is generally limited to situations where the same merchandise and issues are pending in connection with another protest or where a test case is pending in court which has progressed to the trial stage. This is to limit suspension to cases which will be resolved quickly and to bona fide issues that are not so lacking in merit as to be vulnerable to dismissal before trial.

In the protest currently before us the issue is no longer relevant. The protestant presented this issue before the United States Court of International Trade in Mitsui Foods, Inc. v. United States, 12 CIT 276 (1988). The court found that tuna packed in American Samoa is not "United States pack," and therefore, was correctly classified under item 112.34, TSUS.

HOLDING:

The protestant requested a suspension of action on the protest pending the establishment of the issue of whether tuna canned in American Samoa is "United States pack." The court in Mitsui Foods, Inc. v. United States, 12 CIT 276 (1988), found that tuna that is canned in American Samoa is not "United States pack," and therefore, the Customs Service properly classified the imported canned tuna as tuna, other, under item 112.34, TSUS. Therefore, the issue of whether this protest for further review can be suspended is moot.

Accordingly you are directed to deny the protest. A copy of this decision should be furnished to the protestant in order to satisfy the notice requirement of section 174.30(a), Customs Regulations.

Sincerely,

John A. Durant

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