HQ 962034 - Application for Further Review of Protest No. 1601-98-100067; Detention of Merchandise; Exclusion of Merchandise; Failure to Decide Protest Within Thirty Days; Treated as Having Been Denied; Judicial Review of Denial of Protest; 19 U.S.C. 1499; 19 C.F.R. 151.16(g); 19 C.F.R. 174.21(b); 19 C.F.R. 174.31(c); - United States International Trade Commision Rulings

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HQ 962034

December 21, 1999

CLA-2 RR:CR:TE 962034 SS

Category: EXCLUSION

Port Director, Port of Charleston
200 East Bay Street
Charleston, SC 29401

RE: Application for Further Review of Protest No. 1601-98-100067; Detention of Merchandise; Exclusion of Merchandise; Failure to Decide Protest Within Thirty Days; Treated as Having Been Denied; Judicial Review of Denial of Protest; 19 U.S.C. 1499; 19 C.F.R. 151.16(g); 19 C.F.R. 174.21(b); 19 C.F.R. 174.31(c);

Dear Sir:

This is in response to the Application for Further Review of Protest Number 1601-98-100067 filed on behalf of the importer, DonnKenny Apparel Inc. (‘Protestant”), contesting the exclusion under section 499 Tariff Act of 1930, as amended (19 U.S.C. 1499) of a shipment of ladies’ blouses and T-shirts received by our office for review on July 14, 1998.

Protestant attempted to enter a shipment of 47,052 ladies’ blouses and T-shirts on May 19, 1998. Protestant claimed Macau as the country of origin. Customs issued a Notice of Detention and requested production documents in order to determine admissibility on May 28, 1998. The documentation submitted by the importer was insufficient to establish Macau as the proper country of origin. Customs issued a Notice of Action which excluded the merchandise from entry on June 15, 1998. On June 30, 1998, Protestant filed its Protest and Application for Further Review.

Section 174.21(b) of the Customs Regulations (19 C.F.R. 174.21(b)) directs that if a protest relates to an administrative action involving exclusion of merchandise from entry, the port director shall review and act on a protest within 30 days from the date the protest was filed. 19 U.S.C. 1499(c)(5)(B), which governs the effect of Customs’ failure to make a determination, states in relevant part:

(B) For the purposes of section 1581 of Title 28, a protest against the decision to exclude the merchandise which has not been allowed or denied in whole or in part before the 30th day after the day on which the protest was filed shall be treated as having been denied on such 30th day.

Since Customs did not issue a ruling on the Protest within 30 days, the Protest was treated as having been denied on July 30, 1998 (i.e., 30 days after the day on which the protest was filed) for purposes of 28 U.S.C. 1581 (see section 151.16(g), 174.21(b) Customs Regulations; 19 C.F.R. 151.16(g), 174.21(b)). The statute does not indicate that any further action, such as the issuance of a notice of denial on the Customs Form 19, by Customs is necessary. Having invoked the provisions of section 499, the importer or its agent is presumed to be aware of the results of Customs failure to issue a decision within the statutory time frame.

Section 174.31(c) provides that any person whose protest has been denied may contest the denial by filing an action in the Court of International Trade within 180 days after

(C) [t]he date that a protest is deemed denied in accordance with 174.21(b), or §151.16(g) of this chapter.

Since the Automated Commercial System (ACS) record on this protest does not indicate a summons was filed within the 180 day time frame (i.e., January 26, 1999) the issue is now moot.

This letter is being provided to you in order to administratively close the ACS record in the Protest Module. The record should be annotated with a “D” for denied and the date of denial for the administrative record should be July 30, 1998; the date the Protest was deemed denied by virtue of section 151.16(g) and 174.21(b), Customs Regulations (19 C.F.R. 151.16(g), 174.21(b)).

No further contact with Protestant is required by your office. Section #A1 of Customs Directive Number 099 3559-065, dated August 4, 1993, Subject: Revised Protest Directive does not apply to protests of exclusions that are deemed denied. Thus, this administrative closure should not be annotated on the Customs Form 19, Notice of Action, nor does it need to be furnished to the Protestant within 60 days from the date of this letter. To do so may create the impression that an actionable event has occurred. That is not the case.

As a courtesy, in this case, we are providing counsel for the Protestant with a copy of this letter.

Any questions regarding the foregoing may be directed to Shari Suzuki of my staff at (202) 927-2339.

Sincerely,

John Durant, Director
Commercial Rulings Division

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