HQ 223409: Application for Further Review of Protest No. 2904-7-000241; Suspension of Protest; 19 CFR 174.13(a)(7); MitsuiFoods, Inc. v. United States, 12 CIT 276 (1988).

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 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.


                               -2-


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
                                   Director
                                   Commercial Rulings Division