CLA-2 RR:CR:TE 960665 RH
Port Director
U.S. Customs Service
1 East Bay Street
Savannah, GA 31401
RE: Protest number 1702-97-100086; subheading 5201.00.1200;
subheading 5201.00.0022;
staple length; 19 C.F.R. 151.85;
Dear Sir or Madam:
This is in reply to the Application for Further Review of Protest
(AFR) number 1702-97-100086, which you forwarded to our office
for review. Alexander International filed the protest on behalf
of Fieldcrest Cannon, Inc.
FACTS:
The record reflects that on July 15, 1996, the protestant entered
1,994 bales of raw Argentine cotton into the United States under
subheading 5201.00.1200 of the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA). At the time of entry, Customs
required an examination of the merchandise. Numerous bales from
different containers were selected from which to take samples.
The samples were forwarded by Customs to the United States
Department of Agriculture (USDA) for testing. Based on the
information supplied by USDA, Customs issued 203 laboratory
reports which are all identical except for the staple length of
the bale which is the subject of each report. One of the
reports reads as follows:
based on analysis by the savannah customs laboratory and the u.s. department
of agriculture laboratory, the sample is cotton fiber, not carded or
combed, having a staple length of 28.956 millimeters. The staple length
of the cotton falls within the staple lengths of american uplands cotton
(gossypium hirsutum). In our opinion, the sample is not harsh or rough
cotton.
The average staple length for this lot of 203 samples is 28.600
millimeters. The sample was consumed in analysis.
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In light of the laboratory findings, Customs issued a Notice of
Action (Customs Form 29) on January 28, 1997, for the rate
advance of the merchandise. Customs classified the cotton under
subheading 5201.00.2200, HTSUSA, and liquidated the entry on
February 21, 1997.
The protestant timely filed this protest seeking reliquidation of
the entry and a refund of duties and interest paid. Counsel
claims that the protestant was denied the ability to invoke 19
C.F.R. 151.85 (request for redetermination), because the bales
of cotton had been consumed and the sample material destroyed by
both the USDA and the importer.
ISSUE:
Was the protestant "denied the ability" to file a request for
reconsideration under 19 C.F.R 151.85?
LAW AND ANALYSIS:
The Customs Regulations governing the testing and sampling of
cotton are set forth in 19 C.F.R. 151 Subpart F. Section
151.84 of the Customs Regulations (19 C.F.R. 151.84) provides
that the district director shall have one or more samples of each
sampled bale of cotton stapled by a qualified customs officer, or
a qualified employee of the Department of Agriculture and "shall
promptly mail the importer a notice of the results obtained."
In this case, Customs sent the cotton samples in question to the
USDA in Memphis, Tennessee for analysis shortly after entry of
the merchandise on June 14, 1996. The final laboratory reports
were completed on August 28, 1996. There were 203 laboratory
reports issued by Customs based on the USDA analysis, all of
which had to be reviewed and processed by the field import
specialist (FIS). The results were then forwarded to the
National Import Specialist (NIS) in New York for review on
November 21, 1996. The NIS responded to the port on January 9,
1997 and the protestant was mailed the Notice of Action on
January 28, 1997.
In light of the fact that Customs sampled 203 bales of cotton, we
find that the processing time described in the preceding
paragraph was reasonable for an entry of this magnitude. Once
Customs completed its review of this entry, the protestant was
notified of the determination within 19 days. We find that this
satisfies the requirements of 19 C.F.R. 151.84.
Section 151.85 of the Customs Regulations (19 C.F.R.151.85)
reads in its entirety:
If the importer is dissatisfied with the port director's
determination, he may file with the port director, within 14
calendar days after the mailing of the notice, a written
request in duplicate for a redetermination of the staple
length. Each such request shall include a statement of the
claimed staple length for the cotton in question and a clear
statement of the basis for the claim. The request shall be
granted if it appears to the port director to be
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made in good faith. In making the redetermination of staple
length, the port director may obtain an opinion of a board
of cotton examiners from the U.S. Department of Agriculture,
if he deems such action advisable. All expenses occasioned
by any redetermination of staple length, exclusive of the
compensation of Customs officers, shall be reimbursed to the
Government by the importer.
Counsel claims that the protestant was denied the ability to
invoke 19 C.F.R. 151.85 because the bales of cotton had been
consumed and the sample material destroyed by both the USDA and
the importer. We find this claim without merit. The regulation
(19 C.F.R. 151.85) requires the importer to file a request for
redetermination within 14 days of receiving notice of the port
director's determination and must state a basis for the claim.
The decision to grant or deny the request is left to the
discretion of the port director. In any event, the burden to
seek a redetermination was on the protestant, which it failed to
do. Since the protestant failed to seek a redetermination and
state a claim within the time prescribed by the regulation, it
cannot now avail itself of the regulation to support the protest.
HOLDING:
Based on the foregoing, we find that Customs promptly notified
the protestant of the test results on the imported cotton in
accordance with 19 C.F.R. 151.84. Moreover, the protestant
failed to file a request for reconsideration under 19 C.F.R.
151.85. Accordingly, the protest should be denied.
In accordance with section 3A(11)(b) of Customs Directive Number
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be attached to the Customs Form
19, Notice of Action, and furnished 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 (On that date) the Office of Regulations and Rulings
will take steps to make the decision available to Customs
personnel via the Customs Ruling Module in ACS and to the public
via the Diskette Subscription Service, Freedom of Information
Act, and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division