HQ 224302: Protest for further review number 2904-92-100180; protestnumber 2904-92-100160; 19 U.S.C. 1520(c); San Francisco NewspaperPrinting 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 CFR174.22(d).

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            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 

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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. 

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     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