Importers that have contested CBP decisions are familiar with the protest process.\u00a0 In essence, a protest is a filing through which an importer challenges a CBP decision and advances legal arguments to further its cause.\u00a0 Importers that are familiar with the protest process may also be familiar with the seemingly endless wait that often must be endured between the filing of a protest and the receipt of CBP\u2019s eventual decision.<\/p>\n
The Court of International Trade, in its April 30, 2001 decision in Hitachi Home Electronics v. United States<\/em>, made it clear that, unless a protesting importer takes the affirmative step of requesting accelerated disposition of its protest pursuant to 19 C.F.R. \u00a7 174.22(d), CBP may take its time in deciding a protest, without limitation.\u00a0 That\u2019s right, CBP has an endless amount of time to issue its decision on a protest.<\/p>\n The facts of the Hitachi<\/em> case were rather pedestrian.\u00a0 Hitachi entered plasma televisions made in Mexico claiming duty-free treatment under NAFTA.\u00a0 CBP instead liquidated Hitachi\u2019s entries at 5.0% ad valorem.\u00a0 Hitachi protested in May of 2005 and submitted documentation supporting its claim for duty-free treatment.\u00a0 It protested similar entries thereafter.\u00a0 For a variety of reasons, CBP took no action.\u00a0 In November of 2007, Hitachi filed suit at the Court of International Trade, claiming that CBP\u2019s inaction resulted in a deemed allowance of the protests.<\/p>\n The Hitachi <\/em>court concluded that CBP has an unlimited amount of time within which to decide protests despite the fact that a statue, 19 U.S.C. \u00a7 1515(a), provides that \u201cwithin two years from the date a protest was filed . . . [CBP] shall review the protest and shall allow or deny such protest in whole or in part.\u201d\u00a0 The court held that the \u201cshall\u201d in Section 1515 is permissive, not mandatory.\u00a0 To reach this conclusion, the court examined the legislative history of the statute and noted that the Code does not \u201cprovide a consequence for Customs\u2019 failure to either allow or deny a protest\u201d within the two year period.\u00a0 Simply put, the court found that, had Congress wanted the two year period prescribed in Section 1515 to have teeth, it would have passed a measure calling for some consequence, such as deemed denial or allowance, to result from the passing of the deadline.\u00a0 Instead, the statute is silent.\u00a0 As a result, the court, following previous Court of International Trade cases, held that Section 1515 is \u201cdirectory\u201d or \u201cregulatory,\u201d and not \u201cmandatory.\u201d<\/p>\n The court also based its decision on the fact that the accelerated disposition procedure provided for under 19 U.S.C. \u00a7 1515(b) was, in the court\u2019s view, enacted by Congress to provide importers with a means to remedy unreasonable CBP delay in deciding protests.\u00a0 That statute allows an importer to request accelerated disposition of a protest at any time after the filing of the protest and provides that \u201ca protest which has not been allowed or denied in whole or in part within thirty days following the mailing . . . of a request for accelerated disposition shall be deemed denied on the thirtieth day following mailing of such request.\u201d\u00a0 Of course, it is difficult to imagine CBP personnel receiving a request for accelerated disposition and then rushing to decide a protest due to the ticking of the thirty day clock.\u00a0 Rather, it is more likely that the filing of a request for accelerated disposition would result in the deemed denial of the filer\u2019s protest because CBP moves at its own speed.\u00a0 The resulting deemed denial may be appealed at the Court of International Trade, but most importers want administrative fairness, not expensive litigation.<\/p>\n The Court of International Trade\u2019s jurisdictional statute provides that a party, unless certain unique circumstances are present, must exhaust its administrative remedies prior to filing suit by protesting a CBP decision and receiving a ruling thereon. \u00a0The Hitachi<\/em> court concluded by holding that, because Hitachi\u2019s protests had not been ruled upon by CBP, and were not deemed denied or allowed by operation of law, the court lacked jurisdiction to hear its complaint.\u00a0 As a result, the case was dismissed on jurisdictional grounds, and Hitachi\u2019s protests are presumably still pending.<\/p>\n (Sound of crickets chirping.)<\/p>\n","protected":false},"excerpt":{"rendered":" Importers that have contested CBP decisions are familiar with the protest process.\u00a0 In essence, a protest is a filing through which an importer challenges a CBP decision and advances legal arguments to further its cause.\u00a0 Importers that are familiar with the protest process may also be familiar with the seemingly endless wait that often must be endured between the filing […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[13],"tags":[],"class_list":["post-56","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"_links":{"self":[{"href":"https:\/\/www.customscourt.com\/es\/wp-json\/wp\/v2\/posts\/56","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.customscourt.com\/es\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.customscourt.com\/es\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.customscourt.com\/es\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.customscourt.com\/es\/wp-json\/wp\/v2\/comments?post=56"}],"version-history":[{"count":0,"href":"https:\/\/www.customscourt.com\/es\/wp-json\/wp\/v2\/posts\/56\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.customscourt.com\/es\/wp-json\/wp\/v2\/media?parent=56"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.customscourt.com\/es\/wp-json\/wp\/v2\/categories?post=56"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.customscourt.com\/es\/wp-json\/wp\/v2\/tags?post=56"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}