PRO-2-02/BON-2-RR:IT:EC 226218 PH
Port Director of Customs
c/o Protest and Control Section
300 South Ferry Street
Terminal Island, California 90731
RE: Protest No. 2720-94-101049; Protest No. 2720-95-100155; FDA
Notice of Sampling; Notice of Redelivery; Timeliness; 19 CFR
113.62; 19 CFR 141.113; Ruling HQ 225807; 19 U.S.C. 1514
Dear Sir or Madam:
The above-referenced protests were forwarded to this office for
further review. We have considered the evidence provided, and
the points raised, by your office and the protestant. Our
decision follows.
FACTS:
According to the file, on April 8, 1994, the protestant imported
the merchandise under consideration, certain dried fish.
Immediate delivery was requested, on April 8, 1994, according to
the form for requesting such delivery (Customs Form (CF) 3461).
The CF 3461 was stamped with a signed and dated (April 14, 1994)
FDA Notice of Sampling which stated: "This shipment must be held
intact, FDA Notice of Sampling, This entry may be removed from
cargo control for sampling in the FDA district sampling area".
Regarding this request for a sample, the protestant states that
"[t]he importer, however, was unable to provide FDA with a
sample."
In a letter to Customs dated May 3, 1994, and captioned
"REDELIVERY REQUEST", the FDA stated that the entry under
consideration was for merchandise subject to FDA jurisdiction
which had not been made available for FDA examination. FDA
stated that it was "... hereby requesting a redelivery of these
articles [the protested entry is cited] to Customs custody".
Customs issued a Notice to Mark and/or Notice to Redeliver (CF
4647) for the merchandise under consideration. The CF 4647 was
signed and dated June 10, 1994, and in the "Remarks ..." portion
of the CF 4647, it was stated "[m]erchandise must be exported or
destroyed by August 31, 1994 ... [p]lease submit proof of
exportation or destruction to our office."
A protest of the Notice to Redeliver (demand for redelivery) was
filed on June 28, 1994. (There was some confusion in the
processing of this protest, and the protest filed on June 28,
1994, was not entered on Customs Records until October 7, 1994.
As a result of this confusion, there are two protests (cited
above) of this matter.) Further review was requested and
granted.
Liquidation of the entry did not occur until after the demand for
redelivery was issued and the protest of that demand was filed
(i.e., initial liquidation was on July 29, 1994, followed by a
voluntary reliquidation, under 19 U.S.C. 1501, on October 7,
1994).
ISSUE:
Was the Notice of Redelivery timely in this case?
LAW AND ANALYSIS:
Initially, we note that the protest, with application for further
review, was timely filed under the statutory and regulatory
provisions for protests (see 19 U.S.C. 1514 and 19 CFR Part 174).
We also note that the decision to issue a Notice of Redelivery is
protestable under the Customs protest statute (see 19 U.S.C.
1514(a)(4)).
The Customs Regulations governing the timeliness of the recall of
merchandise released from Customs custody are described below.
Under 19 CFR 141.113(c):
If at any time after entry the port director finds that any
merchandise contained in an importation is not entitled to
admission into the commerce of the United State for any
reason not enumerated in paragraph (a) or (b) of this
section [those paragraphs are not applicable in this case],
he shall promptly demand the return to Customs custody of
any such merchandise which has been released.
Under 19 CFR 141.113(d):
If the importer has not promptly complied with a request for
samples or additional examination packages made by the port
director pursuant to [19 CFR 151.11], the port director may
demand the return of the necessary merchandise to Customs
custody.
Under 19 CFR 141.113(g):
A demand for the return of merchandise to Customs custody
shall not be made after the liquidation of the entry
covering such merchandise has become final.
Under 19 CFR 113.62(d) (section 113.62 contains the conditions of
the basic importation and entry bond):
If merchandise is released conditionally from Customs
custody to the principal before all required evidence is
produced, before its quantity and value are determined, or
before its right of admission into the United States is
determined, the principal agrees to redelivery timely, on
demand by Customs, the merchandise released if it:
(1) Fails to comply with the laws or regulations
governing admission into the United States;
(2) Must be examined, inspected, or appraised as required
by 19 U.S.C. 1499; or
(3) Must be marked with the country of origin as required
by law or regulation.
It is understood that any demand for redelivery will be made
no later than 30 days after the date that the merchandise
was released or 30 days after the end of the conditional
release period (whichever is later).
Under 19 CFR 151.11:
If the port director requires samples or additional
examination packages of merchandise which has been released
from Customs custody, he shall send the importer a written
request, on Customs Form 28, Request for Information, or
other appropriate form, to submit the necessary samples of
packages. If the request is not promptly complied with, the
port director may make a demand under the bond for the
return of the necessary merchandise to Customs custody in
accordance with [19 CFR 141.113].
In addition to the foregoing regulatory framework, the Food and
Drug Administration has statutory and regulatory provisions
applying to these issues. Section 801 of the Federal Food, Drug,
and Cosmetic Act, as amended (21 U.S.C. 381(a)), provides, in
part, that:
The Secretary of the Treasury shall deliver to the Secretary
of Health and Human Services, upon his request, samples of
food, drugs, devices, and cosmetics which are being imported
or offered for import into the United States, giving notice
thereof to the owner or consignee, who may appear before the
Secretary of Health and Human Services and have the right to
introduce testimony. * * *
The Food and Drug Administration has issued regulations under the
authority of this provision. Under 21 CFR 1.90:
When a sample of an article offered for import has been
requested by the district director [of the FDA], the
collector of customs having jurisdiction over the article
shall give to the owner or consignee prompt notice of
delivery of, or intention to deliver, such sample. Upon
receipt of the notice, the owner or consignee shall hold
such article and not distribute it until further notice from
the district director or the collector of customs of the
results of examination of the sample.
The Court of Appeals for the Federal Circuit has considered the
applicability of this statutory and regulatory scheme to foods in
three recent cases (United States v. Imperial Food Imports, 6
Fed. Cir. (T) 37, 834 F. 2d 1013 (1987); United States v. Utex, 6
Fed. Cir. (T) 166, 857 F. 2d 1408 (1988); and United States v.
Toshoku, 7 Fed. Cir. (T) 104, 879 F. 2d 815 (1989)). In the
Toshoku case, the Court quoted Imperial Food Imports as
describing the interplay between the FDA and Customs as follows:
When importing foodstuffs the importer or its broker must
notify the FDA, which may issue a may proceed notice.'
However, the FDA may determine that the merchandise should
not be permitted to enter the country without proof of
compliance with [21 U.S.C. 381(a)(3)], which concerns
adulterated food. In such a case, the FDA will issue a
Notice of Sampling [21 CFR 1.90], and often a Notice of
Detention and Hearing [21 CFR 1.94]. If the importer does
not respond to the Notice of Detention within ten days, a
Notice of Refusal of Admission is issued [21 CFR 1.94]. The
importer then has ninety days to either export or destroy
the foodstuffs. If the importer has not acted after ninety
days, Customs issues a Notice of Redelivery [19 CFR
141.113]. If the importer fails to comply by delivering the
goods, the importer breaches its bond with Customs. [7 Fed.
Cir. (T) at 107-108, quoting from 6 Fed. Cir. (T) at 38]
Customs has thoroughly considered the interpretation of the
foregoing provisions (see rulings 088880, dated March 19, 1992;
223538, dated October 1, 1992; 224566 and 951300, both dated
August 3, 1993, 224854, dated July 6, 1994; 224872, dated July 5,
1994; and 225807, dated December 4, 1995). Customs position now
is that a Notice of Redelivery must be "promptly" issued (see
Customs Service Decisions (C.S.D.'s) 90-99, 89-100, and 86-21).
"Promptly", for this purpose, means either: (1) no later than 30
days after the date the merchandise is released if there is no
occurrence establishing a different conditional release period;
or (2) if there is an occurrence establishing a conditional
release period, no later than 30 days after the end of that
period (e.g., if information or a sample is requested under 19
CFR 151.11, a conditional release period is established and a
Notice of Redelivery must be issued within 30 days from the date
of receipt by Customs of the information or sample). As provided
in 19 CFR 141.113(g) (see above), a Notice of Redelivery may
never be issued after liquidation of the merchandise become final
(see also, Utex, supra).
The actions in this case were consistent with the above. Not
later than 30 days after release of the merchandise, FDA gave
notice that the merchandise must be held intact and could be
removed for sampling by FDA (see 21 CFR 1.90; see also Imperial
Food Imports, as quoted above (7 Fed. Cir. (T) 107-108)). This
created a conditional release period which would have ended, if a
sample had been provided, when notice was given from FDA or
Customs of the results of the examination of the sample (21 CFR
1.90, quoted above). In this case, as the protestant concedes,
no sample was provided. Thus, the conditional release period was
not ended. Since the Notice of Redelivery was issued before
liquidation of the merchandise became final, the Notice of
Redelivery was timely (see, in addition to above-cited Court
cases, United States v. Commodities Export Co., 15 CIT 1, 6, 755
F. Supp. 418 (1991)).
(Regarding other issues raised by the protestant (the request for
a sample by FDA instead of Customs; and the lack of a time limit
for compliance on the FDA request for a sample), these issues are
addressed in ruling 225807, dated December 4, 1995. The law and
analysis of that ruling, as applicable in this protest, are
adopted by reference in this ruling. In regard to the
protestant's argument that if there is no formal notification
that the merchandise is inadmissible the Notice of Redelivery
must be canceled, see United States v. Toshoku America, Inc., 11
CIT 641 (1987) (reversed on other grounds, see citation above),
in which the Court stated that "... a demand for redelivery to
Customs custody is in reality no different than a decision to
exclude merchandise from entry or delivery" (11 CIT at 644).
Furthermore, we note that the provision of the Customs
Regulations (19 CFR 113.62(d)(1)) cited by the protestant in this
regard provides that the principal agrees to redeliver timely, on
demand by Customs, the merchandise released if it "[f]ails to
comply with the laws or regulations governing admission into the
United States". One of such regulations is 21 CFR 1.90, quoted
above, which requires the owner or consignee to hold the
merchandise and not distribute it until further notice of the
result of examination of the sample. The protestant did "[f]ail
to comply with [this] regulation ....")
Procedurally, as noted above, Customs records show that there are
two protests in this matter (2720-94-101049 and 2720-95-100155).
Customs procedural processing of this matter should be as
follows. The first protest should be denied for the substantive
reasons set forth above. As for the second protest, 19 U.S.C.
1514(c) provides that "[o]nly one protest may be filed for each
entry of merchandise, except that where the entry covers
merchandise of different categories, a separate protest may be
filed for each category [and] [i]n addition, separate protests
[may be filed in certain described situations]." (Note also that,
in a case such as this, a protest of the Notice of Redelivery and
a protest of an issue such as tariff classification could be
separately filed.) None of the exceptions are applicable in
this case. Accordingly, the second protest should be denied on
this procedural basis (i.e., that only one protest may be filed
for each entry of merchandise).
HOLDING:
The Notice of Redelivery was timely in this case. Both protests
are DENIED (the first because the Notice of Redelivery was
timely, the second on procedural grounds).
In accordance with Section 3A(11)(b) of Customs Directive 099
3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed by your office, with
the Customs Forms 19, to the protestant no later than 60 days
from the date of this letter. Any reliquidation of the entry in
accordance with the decision must be accomplished prior to
mailing of the decision. Sixty days from the date of the
decision the Office of Regulations and Rulings will take steps to
make the decision available to Customs personnel via the Customs
Rulings Module in ACS and the public via the Diskette
Subscription Service, Freedom of Information Act, and other
public access channels.
Sincerely,
William G. Rosoff
Acting Director
International Trade Compliance Division