Protest number 3004-01-100052; 19 U.S.C. §1515(b); 19 CFR §174.22(d); Protest Deemed Denied

HQ 965262 July 10, 2002 CLA-2 RR:CR:TE 965262 RH CATEGORY: Classification TARIFF NO.: 4407.10.0015 Port Director U.S. Customs Service 9901 Pacific Highway Blaine, Washington 98230 RE: Protest number 3004-01-100052; 19 U.S.C. §1515(b); 19 CFR §174.22(d); Protest Deemed Denied Dear Sir: This is in reply to the Application for Further Review of Protest (AFR) number 3004-01-100052, that you forwarded to our office for review. FACTS: The protest at issue is against Customs classification of certain lumber under subheading 4407.10.0015 of the Harmonized Tariff Schedule of the United States (HTSUS), as general sawn lumber. Customs liquidated the various entries under protest between April 29 and May 11, 2001. On July 18, 2001, the law firm of Joel R. Junker, P.C., filed the AFR, on behalf of Millenium Lumber Distribution, Ltd. The protestant contends that the merchandise is properly classified as truss components under subheading 4418.90.4020, HTSUS, or alternatively, under subheading 4421.90.9840,HTSUS, as other articles of wood. On March 8, 2002, the protestant filed, by certified mail, a request for accelerated disposition of protest number 3004-01-100052 and protest number 3004-01-100070 (not at issue in this case). Customs did not take action on the request. - 2 - ISSUE: Is the protest deemed denied pursuant to 19 U.S.C. §1515(b) and 19 CFR §174.22? LAW AND ANALYSIS: The protestant filed a request for accelerated disposition of the subject protest pursuant to 19 CFR §174.22. That regulation follows the jurisdictional route provided by Congress under 19 U.S.C. §1515(b) to obtain judicial review on an excelerated basis. The statute provides: (b) Request for accelerated disposition of protest A request for accelerated disposition of a protest filed in accordance with section 1514 of this title may be mailed by certified or registered mail to the appropriate customs officer any time after ninety days following the filing of such protest. For purposes of section 1581 of Title 28, a protest which has not been allowed or denied in whole or in part within thirty days following the date of disposition shall be deemed denied on the thirtieth day following mailing of such request. Under this statute, an importer may request an accelerated disposition after 90 days of the protest. If Customs does not act upon the request for accelerated disposition within 30 days, the protest is deemed to be denied for purposes of 28 U.S.C. §1581 and the importer may file an action in the Court of International Trade within 180 days. See Cherry Lane Fashion Group, Inc. v. United States, 712 F. Supp. 190, 13 Ct. Int’l Trade 291 (1988), aff’d 897 F. 2d 539 (Fed. Cir. 1990), and cases cited therein. In this instance, the protestant filed a request for accelerated disposition of its protest by certified mail on March 8, 2002, 90 days after filing the AFR. Customs took no action on the protest. Accordingly, the protest was denied by operation of law on the thirtieth day following mailing of the request for accelerated disposition, pursuant to 19 U.S.C. §1515(b). Notwithstanding the deemed denial of the protest, we note that the protest would have been denied on the merits, in accordance with Customs position set forth in Headquarters Ruling Letter (HQ) 963876, dated February 12, 2001. - 3 - HOLDING: Protest number 3004-01-100052 is DEEMED DENIED, pursuant to 19 U.S.C. §1515(b) and 19 CFR §174.22. In accordance with Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, section 3A(9)(e), the protest module must be updated (PMAC) to indicate a denial on the date of deemed denial, and “Protest deemed denied, CR 174.22(d)” entered in the remarks section. Since denial occurs by operation of law rather than mailing the CF 19 decision, no action should be taken on the CF 19. Evidence of deemed denial will take the form of the request letter and envelope affixed to the file, and the ACS record. A copy of this decision should be mailed to protestant’s counsel. Sincerely, John E. Elkins, Chief Textiles Classification Branch