RES-2-16-RR:IT:EC 115253 GG
Port Director
U.S. Customs Service
1624 E. 7th Avenue, Suite 101
Tampa, FL 33605
RE: Application for Further Review of Protest No. 1803-00-100122; Notice to Redeliver; Non-Conforming Vehicle
Dear Sir:
This is in response to the above-referenced application for further review. We have considered the issues raised and our decision follows.
FACTS:
The protestant, Mr. Ali Raza, imported a Ferrari automobile. Mr. Raza is a naturalized U.S. citizen and is a U.S. resident. The sequence of events is as follows:
February 18, 2000 – Date of Importation.
February 22, 2000 – Customs Form (CF) 3299 Declaration of Free Entry of Unaccompanied Articles filed by broker, claiming free entry based on Mr. Raza’s status as a visiting non-resident. Entry rejected and importer instructed to file a formal entry.
March 15, 2000 – CF 3461 filed. Note written by broker in Box 29 indicated that the vehicle did not conform to EPA/DOT regulations, and may be imported for up to one year only.
March 15, 2000 – Customs releases automobile.
March 29, 2000 – Entry Summary filed.
April 28, 2000 – U.S. Department of Transportation (DOT) requests redelivery of automobile.
April 28, 2000 – Customs issues CF 4647, Notice to Redeliver.
July 6, 2000 – Protest filed.
The protest is being made against “the notice to redeliver”. The argument presented in support of the protest is that redelivery is inappropriate because “proper entry is possible”. The protestant requests that Customs cancel the entry and allow Mr. Raza to have an independent commercial importer (ICI) bring the automobile into compliance prior to filing a new entry. This ICI would replace a company initially hired by Mr. Raza which reportedly falsely claimed to be an ICI. The allegation is made that many of the problems resulting from the importation of the car were the result of the improper advice furnished by that company. The claim is also made that Customs should allow the entry cancellation and substitution because the entry filing was the result of a mistake of fact or inadvertence, which are correctable under 19 U.S.C. 1520(c)(1). The basis for the section 520(c)(1) claim is that both Mr. Raza and the broker acted on the erroneous advice of the bogus ICI.
ISSUE:
Whether the decision to request redelivery is correctable under 19 U.S.C. 1514 or 19 U.S.C. 1520(c)(1)?
LAW AND ANALYSIS:
Section 1514 of Title 19 of the United States Code provides procedures for the filing of a protest. Section 1514(a) states that decisions of Customs officials, including decisions as to a demand for redelivery to customs custody, are “final and conclusive upon all persons . . . unless a protest is filed in accordance with this section . . .. Section 1514(c)(1) continues that a protest shall set forth:
Distinctly and specifically each decision . . . as to which protest is made; each category of merchandise . . . as to which protest is made; and the nature of each objection and reasons therefore. (emphasis added.)
The implementing regulation, found in 19 CFR §174.13(a)(6), requires a protest to specify “the nature of, and justification for the objection set forth distinctly and specifically with respect to each category, payment, claim, decision, or refusal . . . “.
The Supreme Court has explained the rationale for requiring a protest to convey information that is sufficient for Customs to properly dispose of the protest:
Protests . . . must contain a distinct and clear specification of each substantive ground of objection to the payment of duties.
Technical precision is not required; but the objections must be so distinct and specific, as, when fairly construed, to show that the objection taken at the trial was at the time in the mind of the importer, and that it was sufficient to notify the collector of its true nature and character, to the end that he might ascertain the precise facts, and have an opportunity to correct the mistake and cure the defect, if it was one which could be obviated.
Davies v. Arthur, 96 U.S. 148, 151, 24 L. Ed. 758 (1877).
Several more recent court cases, Koike Aronson, Inc. v. United States, 165 F.3d 906 (Fed. Cir. 1999), Washington Int’l Ins. Co. v. United States, 16 CIT 599 (1992), and Computime, Inc. v. United States, 16 CIT 599, 601 (1992), examined protest sufficiency and concluded that the protests at issue were invalid. Koike involved a protest against the classification of merchandise. The protest did not state the nature of the objections or the justification for such objections. Instead, it merely claimed that the tariff classification was wrong and did not specify the correct classifications which should have been applied. Customs denied the protest, and the Court of International Trade then affirmed the invalidity of the protest and dismissed the plaintiff’s appeal on the grounds that it only had jurisdiction to address appeals from the denial of a valid protest. The Federal Circuit Court of Appeals affirmed the dismissal, stating that Koike’s protest “fails to satisfy the statutory or regulatory requirements of validity. In particular, the protest does not state either ‘the nature of each objection and the reasons therefor’”.
The court in Washington Int’l noted that giving consideration to a protest which fails to validly assert a challenge to a decision by Customs “would eviscerate the protest requirements mandated by Congress and effectively require Customs to scrutinize the entire administrative record of every entry in order to divine potential objections and supporting arguments which an importer meant to advance”. Computime in turn explained that protests are not “akin to notice pleadings [that] merely have to set forth factual allegations without providing any underlying reasons”.
The foregoing discussion underscores the need for a protestant to adequately explain why the protested decision of a Customs officer was erroneous. Mr. Raza’s protest indicates that it is a protest of the notice to redeliver issued by Customs on April 28, 2000. However, the protest, by not raising objections as to the timeliness or the content of the notice, fails to demonstrate that the notice itself or the decision to request redelivery was defective. The only direct reference to the issue of redelivery is the claim made that “because proper entry is possible, redelivery and
liquidated damages are inappropriate”. Beyond this conclusory statement, no arguments have been presented to support the notion that the redelivery notice or the decision to request delivery were in any way improper. The arguments presented, i.e., that the previously-filed entry was invalid, the purported ICI was unscrupulous, the importer’s intention was to enter the car properly, entry substitution is authorized, etc., do not address the decision protested and are, therefore, irrelevant. The protestant has failed to justify the claim made that the notice to redeliver was improper. Relief under 19 U.S.C. 1514 is, therefore, unavailable.
Similarly, the protestant has failed to establish that entry substitution is allowable under 19 U.S.C. 1520(c)(1). The rulings cited in support of such substitution are HQ 225026, dated April 30, 1996; HQ 723750, dated November 29, 1983; HQ 301863, dated November 14, 1974; and HQ 725570, dated March 18, 1986. The first three cited rulings involve the requested substitution of a temporary importation under bond (“TIB”) entry for a consumption entry, a procedure which under certain circumstances is specifically allowed under 19 CFR 10.31(g). Mr. Raza is not requesting that his original consumption entry be converted to a TIB. Consequently, the substitution provisions of section 10.31(g) do not apply. HQ 725570 is also inapplicable because that case involved a request for reliquidation under 19 U.S.C. 1520(c)(1). That particular statutory provision allows reliquidation of an entry or reconciliation to correct clerical errors, mistakes of fact, or other inadvertences not amounting to an error in the construction of the law. The entry pertaining to Mr. Raza’s Ferrari has not yet been liquidated, rendering correction under the provisions of section 520(c)(1) unsupported by law. See Berkery, Inc. et al. v. United States, 47 Cust. Ct. 102, C.D. 2287 (1961); Hensel, Bruckmann & Lorbacher, Inc. a/c Naftone International Corp. et al. v. United States, 57 Cust. Ct. 52, C.D. 2732 (1966); J.S. Sareussen Marine Supplies, Inc. v. United States, 62 Cust. Ct. 449, C.D. 3799, 304 F. Supp. 1185 (1969).
HOLDING:
It has not been demonstrated, as required by 19 U.S.C. 1514(c)(1), that either the request by Customs for redelivery or the underlying redelivery notice itself was in error. Furthermore, the entry has not been liquidated and is thus not correctable under 19 U.S.C. 1520(c)(1). Therefore, the protest is invalid and should be denied.
The protest should be DENIED. 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 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 make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Larry L. Burton
Chief
Entry Procedures and Carriers Branch