OR:RR:CTF:EPDR H332459 JCO
Category: Entry
Port Director
U.S. Customs and Border Protection
Port of Dallas/Fort Worth
7501 Esters Blvd., Suite 160
Irving, TX 75063
Attn: Lillian Imes, Supervisory Import Specialist
Re: Internal Advice Request; Request to void the denial of protest numbers 550107100546,
550108100073, and 550108100168 pursuant to 19 U.S.C. § 1515(d).
Dear Port Director,
This is in response to the request for internal advice, dated July 1, 2011, on behalf of
Prochimie International Inc. (“Prochimie”), forwarded by your office pursuant to 19 C.F.R. §
177.11(a). The request concerns the denial of three protests: numbers 550107100546,
550108100073, 550108100168 (collectively, “Protests”). Prochimie asks for the denial of these
Protests to be voided pursuant to 19 U.S.C. § 1515(d), alleging that denial occurred contrary to
proper instructions. Your office maintains the Protests were deemed denied as a matter of law
pursuant to 19 U.S.C. § 1515(b). Your office seeks clarification as to whether Prochimie’s
request to have U.S. Customs and Border Protection (“CBP”) void the denials of the Protests has
merit. Our analysis and decision follows.
FACTS:
The Protests pertain to three entries of dithiodimorpholine (“DTDM”), which occurred
between January 26, 2007, and April 12, 2007, as evidenced by CBP’s Automated Commercial
Environment (ACE). CBP liquidated these entries between December 12, 2007, and February 22,
2008, and Prochimie filed a protest contesting the classification of DTDM for each entry. Neither
the timeliness of liquidation nor the timeliness of these Protests is disputed.
For each protest Prochimie filed, accelerated disposition was requested pursuant to 19
U.S.C. § 1515(b) – meaning the protest is deemed denied unless a decision to grant or deny in
whole or in part is made within thirty (30) days of the request. CBP did not grant or deny in
whole or in part any of the Protests within 30 days of each respective request for accelerated
disposition.
The Protests alleged that the classification applicable to DTDM under the 2007 or 2008
Harmonized Tariff Schedule of the United States (“HTSUS”) in effect at entry was incorrect and
needed to be corrected within the text of the HTSUS. An import specialist is alleged to have
agreed with Prochimie as to the error in the text of the HTSUS and recommended that the
protests be suspended until the HTSUS could be corrected. The classification applicable to
DTDM in the HTSUS was not modified until 2011, at which time Prochimie contacted your
office to have the Protests granted.
Your office notified Prochimie that the Protests were deemed denied in 2008, and no
further action could be taken with respect to the liquidated entries. Prochimie argued that the
Protests had been suspended, deemed denial notwithstanding, and the entries could be
reliquidated in accordance with the 2011 HTSUS. Prochimie filed a request to void the denial of
the Protests pursuant to 19 U.S.C. § 1515(d) and requested that your office seek internal advice
as to whether the Protests had actually deemed denied. In seeking internal advice, your office
noted that Prochimie’s request to void the denial of the Protests pursuant to 19 U.S.C. § 1515(d)
was not timely filed and failed to identify an instruction to which the denials were contrary.
ISSUE:
Were the subject Protests deemed denied pursuant to 19 U.S.C. § 1515(b)?
LAW AND ANALYSIS:
As an initial matter, we note that a written request to void the denial of a protest, on the
basis that the protest was denied contrary to proper instructions, must be filed “within 90 days
after the date of the protest denial.” 19 U.S.C. § 1515(d). However, even if such a request is
untimely, CBP may void a protest denial that is contrary to proper instructions “on its own
initiative.” Id.; see, e.g., Headquarters Ruling Letter (“HQ”) H030656 (Jan. 13, 2009). Here,
Prochimie submitted a request to void the denial of the Protests roughly two years after their
denial – the request was thus untimely. However, if merited under the circumstances, your office
could elect to consider the request of its own initiative. Given that whether the request pursuant
to 19 U.S.C. § 1515(d) has merit is now the subject of an internal advice request pursuant to 19
C.F.R. § 177.11(a), we will provide clarification for purposes of furnishing such advice.
Pursuant to 19 U.S.C. § 1515(b), a “request for accelerated disposition of a protest . . .
which has not been allowed or denied in whole or in part within thirty days following the date of
. . . [such] a request for accelerated disposition shall be deemed denied on the thirtieth day
following . . . such request.” The statutory language “explicitly provides for deemed denial after
an importer has request accelerated disposition of its protest.” Hitachi Home Elecs., Inc. v.
United States, 34 C.I.T. 488, 496 (2010). Suspension of an accelerated disposition protest within
the statutory thirty-day period does not function to either allow or deny a protest in whole or in
part and thus does not preclude the statutorily required consequence of deemed denial from
occurring. See Erwin Hymer Grp. N. Am. v. United States, 930 F.3d 1370, 1373 (Fed. Cir. 2019)
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(finding that a request for accelerated disposition can be filed for a suspended protest, and could
render the protest deemed denied for purposes of pursing an appeal at the Court of International
Trade); see also United States v. Great Am. Ins. Co., 229 F. Supp. 3d 1306, 1330 (CIT 2017)
(“absent evidence that Customs otherwise ‘allowed or denied [the protest] in whole or in part,’
there is no genuine dispute that Orleans Furniture's protest was deemed denied”).
Accordingly, the only relevant criterion for determining whether a protest has been
deemed denied pursuant to 19 U.S.C. § 1515(b) is whether it has been granted or denied, in
whole or in part, within thirty days of a request for accelerated disposition. Here, the protests
may have been suspended but your office did not take action to either grant or deny, in whole or
in part, any of the three Protests within thirty days of Prochimie’s request for accelerated
disposition. We thus concur with your office that the Protests were deemed denied pursuant to 19
U.S.C. § 1515(b) in 2008. Consequently, and, regardless of whether the protest was denied
contrary to proper instructions, Prochimie’s 2011 request to set aside the denial of the Protests
pursuant to 19 U.S.C. § 1515(d) was untimely because it was outside the ninety (90) day
deadline to file from the date of protest denial.
To determine whether Prochimie’s request to set aside the denial of the Protests merits
CBP review, acting of CBP’s “own initiative,” we must determine whether the Protests were
denied contrary to proper instruction. 19 U.S.C. § 1515(d); HQ H030656. Prochimie does not
identify any instruction contrary to which the protests were denied, Prochimie merely reiterates
its initial protest argument concerning the alleged misclassification of DTDM in the 2007 and
2008 text of the HTSUS. Prochimie asserts that at the time it entered DTDM in 2007 and 2008,
the text of the HTSUS in effect at entry improperly classified DTDM. Prochimie maintains that
due to modification of the applicable classification in 2011, CBP could reliquidate the entries
utilizing the 2011 text of the HTSUS.
Here, no assertion regarding DTDM’s classification can substantiate a request for CBP to,
“on its own initiative,” void the denial of the Protests because the protests were deemed denied
pursuant to 19 U.S.C. § 1515(b). Such a deemed denial cannot possibly be contrary to proper
instruction because the denial is explicitly required by statute: “[p]ursuant to § 1515(b) . . . a
party may submit a request to Customs for accelerated disposition at any time concurrent with or
after the filing of a protest. If accelerated disposition is requested, the protest is deemed denied
unless Customs takes action to allow or deny it by the thirtieth day following” the request.
Norman G. Jensen, Inc. v. United States, 35 C.I.T. 150, 155 (2011); Sigvaris, Inc. v. United
States, 211 F. Supp. 3d 1353, 1357 (CIT 2017) (Footnote 5) (“By statute, ‘a protest which has
not been allowed or denied in whole or in part within thirty days following . . . a request for
accelerated disposition shall be deemed denied’”). Consequently, the denial of the Protests
properly occurred thirty days after Prochimie requested accelerated disposition for each protest.
Given that the Protests were denied in accordance with a statutory mandate pursuant to 19 U.S.C.
§ 1515(b), CBP has no authority to void the denial of the Protests pursuant to 19 U.S.C. §
1515(d).
Although we do not reach the substance of Prochimie’s Protests regarding the
classification of DTDM, we note that the text of the HTSUS is incorporated into statute by 19
U.S.C. §1202. All articles imported into the customs territory of the United States are dutiable, or
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exempt from duty, in accordance with the classification and corresponding duty rate specified for
the article in HTSUS. See General Note 1, HTSUS. Pursuant to 19 U.S.C. § 1315(a), the rate of
duty applicable to imported merchandise is the rate in effect at entry for consumption –
specifically, in effect at the time of entry as established in accordance with 19 C.F.R. § 141.68.
See 19 C.F.R. § 141.69 (“[t]he rates of duty applicable to merchandise shall be the rates in effect
at time of entry, as specified in § 141.68”). Accordingly, the relevant text of the HTSUS for
purposes of establishing the classification and duty rate of an article is the version in effect at the
time of entry. Id.; see also Kent Displays, Inc. v. United States, 698 F. Supp. 3d 1339, 1341 (CIT
2024) (Footnote 1).
In closing, we find that the denial of the Protests was statutorily mandated by 19 U.S.C. §
1515(b) upon your office taking no action to allow or deny the Protests, in whole or in part,
within thirty days of Prochimie’s respective requests for accelerated disposition. Consequently,
we find that Prochimie’s request to set aside the denial of the Protests as contrary to proper
instruction pursuant to 19 U.S.C. § 1515(d) has no merit.
HOLDING:
Based on the above, we find that Prochimie’s request to void the denial of protest
numbers 550107100546, 550108100073, and 550108100168 pursuant to 19 U.S.C. § 1515(d)
was both untimely and without merit.
Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings
will make the decision available to CBP personnel and the public on the Customs Rulings Online
Search System (CROSS) at https://rulings.cbp.gov/, which can be found on the U.S. Customs
and Border Protection website at http://www.cbp.gov and other methods of public distribution.
Sincerely,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division
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