HQ 0224302 - Protest for further review number 2904-92-100180; protest number 2904-92-100160; 19 U.S.C. 1520(c); San Francisco Newspaper Printing Co. v. U.S.; 19 CFR 174.1(b); further review; 19 U.S.C. 1515(b); accelerated disposition; 19 CFR 174.22(a); 19 CFR 174.22(d). - United States International Trade Commision Rulings

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HQ 224302

January 5, 1993

PRO-2-04 CO:R:C:E 224302 AJS

CATEGORY: PROTEST

District Director
U.S. Customs Service
Federal Building
Room 198
N.W. Broadway & Glisan Streets
Portland, Oregon 97209

RE: Protest for further review number 2904-92-100180; protest number 2904-92-100160; 19 U.S.C. 1520(c); San Francisco Newspaper Printing Co. v. U.S.; 19 CFR 174.1(b); further review; 19 U.S.C. 1515(b); accelerated disposition; 19 CFR 174.22(a); 19 CFR 174.22(d).

Dear District Director:

This is our decision in protest number 2904-92-100180, dated 9/30/92, which requests further review of protest number 2904- 92-100160 pursuant to 19 U.S.C. 1520(c). Accelerated disposition is also requested pursuant to 19 CFR 174.22.

FACTS:

Protest number 2904-92-100160, dated 8/13/92, was filed against the tariff classification of thermal sensors within subheading 8536.50.00, Harmonized Tariff Schedule of the United States (HTSUS). The box 7 on the Customs Form (CF) 19, which requests application for further review in lieu of review by the district director, was not checked as required. However, box 8 which is also required to be filled out if box 7 is checked, was filled out. The protestant claims that the failure to check box 7 was a clerical error. The district director did not forward the protest for further review, but denied it on 8/31/92.

Protest number 2904-92-100180 was filed under the provisions of 19 U.S.C. 1520(c) requesting further review of protest number 2904-92-100160. The protestant asserts that protest number 2904-92-100160 was denied due to the clerical error regarding box 7. The CF 19 states that the protest was denied based on New York ruling 850021 (3/14/90). The
protestant seek further review so that the classification issues in this denied protest may now be reviewed. The protestant also originally sought "accelerated processing", but subsequently amended their request on 11/02/92 to a request for "accelerated disposition" in accordance with 19 CFR 174.22.

ISSUE:

Whether a party may request further review of a denied protest under 19 U.S.C. 1520(c).

Whether a party may request accelerated disposition of a protest prior to the expiration of 90 days from the date of filing of the protest.

LAW AND ANALYSIS:

In San Francisco Newspaper Printing Co., v. United States (San Francisco News), 620 F. Supp. 738, 740 (1985), the Court of International Trade (CIT) held that Customs is not authorized to exercise jurisdiction over a protest after it has been denied. Once Customs mails a denial, a protestant has but two courses it may pursue: to abandon the protest or bring action in the Court. In this instance, Customs denied protest number 2904-92-100160 on 8/31/92. Accordingly, Customs no longer possesses jurisdiction over this denied protest. The protestant may either abandon the denied protest or bring action in the CIT, no other action on the protest may be taken.

Rather than pursuing one of the two permitted courses by the CIT in San Francisco News, the protestant filed a "protest" under the provisions of 19 U.S.C. 1520(c) requesting "further review" of protest number 2904-92-100160. The term "further review" means review of the decision which is the subject of the protest by Customs officers on a level higher than the district. 19 CFR 174.1(b). Section 1520(c) authorizes Customs to "reliquidate an entry" to correct a clerical error, mistake of fact, or other inadvertence under certain circumstances. The protestant does not seek to have an entry reliquidated, but rather "further review" of the denied protest. In San Francisco News, the CIT stated that "[t]he rescission of a denial of a protest is neither contemplated nor authorized by section 1520(c)." San Francisco News, p. 740. Therefore, Customs may not likewise grant "further review" of protest number 2904-92-100160 under section 1520(c) inasmuch as rescission of this denied protest is not authorized under the named provision. Consequently, protest for further review number 2904-92-100180 must be denied because is seeks an impermissible remedy.

19 CFR 174.22, promulgated pursuant to 19 U.S.C. 1515(b), paragraph (a) states that accelerated disposition of a protest filed in accordance with 19 U.S.C. 1514 may be obtained at any time after 90 days from the filing of such protest, by filing by registered or certified mail a written request for accelerated disposition with the district director to whom the protest was addressed. In this case, accelerated disposition was requested prior to the expiration of 90 days from the date of filing. While no evidence exists that Customs received a request for accelerated disposition by registered or certified mail, a request pursuant to 19 CFR 174.22 was however stamped received on 11/02/92. This date in only 33 days subsequent to the date of protest (i.e., 9/30/92). Nevertheless, the subject request for accelerated disposition was prematurely filed according to the requirements of 19 CFR 174.22(a), and thus is an invalid request.

19 CFR 174.22(d) states that if the district director fails to allow or deny a protest which is the subject of a request for accelerated within 30 days from the date of mailing of such request, the protest shall be deemed to have been denied at the close of the 30th day following such date of mailing. No action allowing or denying the protest was taken within 30 days from the date of mailing. As discussed beforehand, however, the request for accelerated disposition was prematurely filed. Therefore, this request is null and the protest cannot be deemed denied pursuant to 19 U.S.C. 1515(b).

HOLDING:

Protest number 2904-92-100180 requesting further review of the previously denied protest number 2904-92-100160 is denied in full. A protestant may not seek further review of a denied protest. Furthermore, accelerated disposition of the subject protest requested under 19 CFR 174.22 is null due to the premature filing of this request, and no deemed denial of the subject protest therefore occurred. A copy of this decision should be attached to the Form 19 and provided to the protestant.

Sincerely,

John Durant, Director
Commercial Rulings Division

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