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HQ 966049




January 22, 2003

CLA-2-42: RR: CR:TE 966049 JFS

Category: CLASSIFICATION

Mr. John Nourijanian
Armen Cargo Services, Inc.
150-36 182nd Street
Springfield Gardens, NY 11413

RE: HQ 964760, dated October 11, 2001 (Protest No. 1001-99-103028); HQ 964766, dated November 27, 2001 (Protest No. 1001-99-103618); Finality of Protest Decisions; No Authority to Reconsider Protest Decisions.

Dear Mr. Nourijanian:

This letter is in reply to your letter dated October 18, 2002, requesting the opportunity to appeal Customs decisions in Headquarters Ruling Letter (HQ) 964760, dated October 11, 2001 (Protest No. 1001-99-103028) and HQ 964766, dated November 27, 2001 (Protest No. 1001-99-103618).

FACTS:

The merchandise that was the subject of the protests is jogging sets. Customs liquidated the tops of the jogging sets as anoraks, windbreakers and similar articles in subheading 6202.93.5011, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), and the bottoms as trousers in 6204.63.3510, HTSUSA. In your protests, you argued that the garments were water resistant and should have been classified accordingly. You maintained that the tops should have been classified in subheading 6202.93.4500, HTSUSA, and the bottoms should have been classified in subheading 6204.63.3000, HTSUSA. In support of your claim that the garments were “water resistant,” you submitted favorable test results from tests conducted on the garments by two different laboratories.

The Customs Laboratory tested samples of the jogging sets that were provided by the importer. The Customs Laboratory determined that the samples were not “water resistant.” In your letter, you explain that the reason the samples tested by Customs were not “water resistant” was because they were not taken from the protested entries. Instead, they were “salesman samples,” that were only correct in size and style and not in actual fabric. You state that had “they known US Customs wanted actual samples from shipment for [sic] lab we would have requested them from clients. “

ISSUE:

Whether Customs can rescind its decision made on an application for further review of a protest?

LAW AND ANALYSIS:

A protest is designed to pertain to entries of merchandise that have been liquidated by Customs. A final determination of a protest, pursuant to part 174, Customs Regulations (19 CFR 174), cannot be modified or revoked, because it applies only to the merchandise which was the subject of the protested entry. Furthermore, once Customs denies a protest, Customs loses jurisdiction over the protested entries. See San Francisco Newspaper Printing Co. v. United States, 9 CIT 517, 620 F. Supp. 738 (1985). Accordingly, once Customs denied the protests that were the subject of HQ 964760 and HQ 964766, Customs lost jurisdiction over the protested entries.

Your argument that the samples tested by Customs were not taken from the protested entries would have been a meritorious argument had it been presented, with supporting evidence, with the protests. However, Customs decisions on the protests are final. Customs has no jurisdiction over the protests and has no authority to reconsider its decisions.

HOLDING:

Customs decisions on the protests are final and are not subject to reconsideration or review. Customs decisions in HQ 964760, dated October 11, 2001, and HQ 964766, dated November 27, 2001, stand.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

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