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HQ H008849




May 23, 2007

CLA-2: OT:RR:CTF:TCM H008849 KSH

CATEGORY: CLASSIFICATION

TARIFF NO.: 4409.29.6500

Stephen J. Leahy, Esq.
175 Derby Street Suite 9
Hingham, Massachusetts 02043

RE: Request to set aside denial of Application for Further Review, Protest No. 1401-06-100026; 19 U.S.C. 1515(c); 19 CFR 174.24

Dear Mr. Leahy:

This is in reply to your request of March 21, 2007, on behalf of your client, Saunder Brothers, for Customs and Border Protection (“CBP”) to set aside the denial of your Application for Further Review (AFR) and to void the denial of Protest No. 1401-06-100026. The request was timely filed within 60 days after the date of the notice of denial.

The request for review is pursuant to the authority of 19 U.S.C. §1515(c)

We note that your request was filed pursuant to 19 U.S.C. 1515(d), which allows the port to void the denial of a protest which is denied contrary to proper instructions. However, as the instant matter involves the denial of an application for further review and denial of a protest, the proper jurisdiction is pursuant to 19 U.S.C. 1515(c). Accordingly, we will proceed with an analysis under 19 U.S.C. 1515(c). which provides as follows, in pertinent part:

If a protesting party believes that an application for further review was erroneously or improperly denied or was denied without authority for such action, it may file with the Commissioner of Customs a written request that the denial of application for further review be set aside. Such request must be filed within 60 days after the date of the notice of the denial. The Commissioner of Customs may review such request and, based solely on the information before the Customs Service at the time the application for further review was denied, may set aside the denial of the application for further review and void the denial of protest, if appropriate.

In HQ W968173, dated September 7, 2006, we issued a decision on Protest 1401-06-100026 concerning the classification of beech dowels under the Harmonized Tariff Schedule of the United States (HTSUS). Saunders Brothers argued that the beech dowels were classifiable under subheading 4409.20.6000, HTSUS, as plain wood dowel rods. In HQ W968173, we classified the beech dowels under subheading 4409.20.6500, HTSUS, as wood dowel rods that have been sanded,grooved or otherwise advanced in condition. You were notified on Customs Form 19, dated February 1, 2007, of the denial of the protest and a copy of HQ W968173 was furnished to you.

The Court of International Trade has addressed the issue of whether or not CBP 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 CBP determined, without action, that the first protest should have only been denied in part. The protestant brought action against CBP contesting the denial of both protests pursuant to 19 U.S.C. section 1515. CBP 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). CBP had not formally responded to the request, however. The pivotal question became whether or not CBP had the authority to rescind the denial of a protest after it had been mailed.

The court held that CBP 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 CBP 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 to set aside the denial of the AFR and void the denial of the protest, 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. CBP lost jurisdiction over the case ended once the protest and AFR was denied.

At this time, the protestant's recourse is to either initiate action in the U.S. Court of International Trade 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...."

CBP 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 to set aside the denial of the AFR and void the denial of the protest is denied.

Sincerely,

Myles B. Harmon, Director Commercial and Trade Facilitation Division

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