BON-2/PRO-2-02-RR:IT:EC 225825 CC
Port Director
U.S. Customs Service
300 S. Ferry Street
Terminal Island
San Pedro, CA 90731
RE: Application for further review of Protest No. 2704-94- 100047; Notice of Redelivery; Timeliness; HQ 225807; Exportation under Customs supervision
Dear Sir or Madam:
The above-referenced protest was forwarded to this office
for further review. We have considered the facts and issues
raised, and our decision follows.
FACTS:
The merchandise the subject of this protest consists of
frozen shrimp. Stamped on a copy of the Customs Form (CF) 3461,
is a statement by the broker for the importer, dated March 26,
1993, that the proper FDA documentation had been or would be
submitted to the FDA. The subject shrimp was entered and
released on March 28, 1993. The protestant, as principal,
executed a continuous bond securing the entry of the shrimp. A
notice of sampling from the Food and Drug Administration (FDA),
dated March 29, 1993, is stamped on the CF 3461. This notice
states "the shipment must be held intact," and indicated that the
FDA would be sampling the merchandise. A sample was collected by
the FDA on March 31, 1993. The FDA issued a Notice of Refusal of
Admission for five lots of the merchandise on July 30, 1993.
This notice was issued because the shrimp appeared to contain
salmonella, and decomposition, filth or both. The protestant was
advised in the notice that the subject shrimp must be exported
under the supervision of Customs within ninety days of the date
of the notice. On October 8, 1993, Customs issued a Notice to
Redeliver (CF 4647), citing FDA's refusal of admission as the
reason for the redelivery request. The protest was filed on
January 4, 1994.
ISSUE:
Whether the subject Notice of Redelivery was timely issued
within the meaning of 19 CFR 113.62(d)?
Whether the inadmissible merchandise was exported under
Customs supervision?
LAW AND ANALYSIS:
Initially, we note that a demand for redelivery is a
protestable matter pursuant to 19 U.S.C. 1514(a)(4). In
addition, the subject protest was timely filed in accordance with
19 U.S.C. 1514(c)(3)(B).
Section 113.62 of the Customs Regulations (19 CFR 113.62)
contains the basic importation and entry bond conditions.
Paragraph (d) of this provision states the following:
If merchandise is released conditionally from
Customs custody to the principal ... before its right
of admission into the United States is determined, the
principal agrees to redeliver 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; ...
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).
Concerning the issue of timeliness of the redelivery notice,
the protestant makes two major arguments. First, the redelivery
notice was untimely because no valid conditional release period
was created. Second, even if a valid conditional release period
were created, the redelivery notice was not timely issued after
the conditional release period ended.
Our analysis in this protest concerning the timeliness of a
redelivery notice is the same as that contained in HQ 225807 of
December 4, 1995, a similar protest (copy enclosed and
incorporated into this ruling). In HQ 225807 we found that the
failure of the FDA to issue a "may proceed notice" prior to
release of the merchandise was an occurrence establishing a
conditional period. The issuance of a Notice of Refusal of
Admission by the FDA established an end to the conditional
release period of 90 days from the date of the notice unless
otherwise specified. Thus, Customs has no later than 30 days
after the end of this period to issue a Notice of Redelivery. In
HQ 225807, the notice of redelivery was issued within the 90 day
period after the Notice of Refusal of Admission was issued. We
found, therefore, that the Notice of Redelivery was timely issued
within the meaning of 19 CFR 113.62(d).
In this case, we were informed by the import specialist at
the port of entry that a copy of CF 3461 was sent to the FDA by
the importer. The FDA either signs a "may proceed notice" or
stamps and signs a notice of sampling on the CF 3461. In this
case the FDA signed a notice of sampling, which was dated March
29, 1993. Consequently, the FDA failed to issue a "may proceed
notice" prior to release of the subject merchandise on March 28,
1993. This failure to issue a "may proceed notice" by the FDA
established a conditional period. The issuance of the Notice of
Refusal on July 30, 1993 established an end to the conditional
release period 90 days from that date. The Notice of Redelivery
was issued on October 8, 1993, approximately 70 days after the
Notice of Refusal was issued, and well within the 90 day period.
Consequently, the Notice of Redelivery was timely issued within
the meaning of 19 CFR 113.62(d).
The protestant's final argument is that the goods identified
in the FDA's Notice of Refusal were exported in September 1993,
prior to the issuance of the Notice to Redeliver. The protestant
claims, therefore, that redelivery to U.S. Customs custody was
both unnecessary and impossible. In support of this claim, the
protestant has submitted a Shipper's Export Declaration and a
Bill of Lading.
The Notice of Refusal states that the refused merchandise
must be exported or destroyed under Customs' supervision
(emphasis added) within 90 days from the date of the notice or
within such additional time as the district director of Customs
specifies. The mere fact of exportation from the United States,
however, does not establish that such exportation occurred under
Customs' supervision as that term is used in the applicable
regulations. United States v. Continental Seafoods, Inc., 11 CIT
768, 672 F. Supp. 1481, 1487 (1987). Concerning the exportation
of such merchandise, section 12.4 of the Customs Regulations (19
CFR 12.4) states the following:
The exportation of merchandise, the subject of
12.1 [which includes foods governed by 21 U.S.C. 381],
refused admission into the United States in accordance
with regulations applicable thereto shall be under
Customs supervision in accordance with the regulations
set forth in 18.25 and 18.26 of this chapter.
Therefore, 19 CFR 12.4 provides how inadmissable goods are to be
exported: in accordance with 19 CFR 18.25 and 18.26. See, United
States v. Toshoku America, Inc., 879 F.2d 815 (Fed. Cir. 1989).
19 CFR 18.25 (direct exportation) and 19 CFR 18.26 (indirect
exportation) require that certain documentation be filed with
Customs, e.g., copies of CF 7512 and other documentation
depending on the type of exportation. In this case, there is no
evidence that the required copies of CF 7512, as well as the
other required documentation of sections 18.25 or 18.26, were
filed with Customs. In addition, the assistant district director
for commercial operations for the district where this protest was
filed stated concerning this case that neither the Shipper's
Export Declaration nor the Bill of Lading submitted by the
protestant was certified by Customs; there was also no indication
that Customs was ever permitted the opportunity to verify that
the merchandise alleged to have been exported was, in reality,
the merchandise that was subject to FDA refusal. Finally, the
protestant has made no arguments in the protest that the
merchandise was exported under Customs supervision.
Consequently, we find that the inadmissible merchandise was not
exported under Customs supervision in accordance with the
applicable regulations, and, therefore, the notice of redelivery
was necessary.
HOLDING:
The Notice of Redelivery was timely issued within the
meaning of 19 CFR 113.62(d). The subject goods were not exported
under Customs supervision. Therefore, the protest is 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 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,
Director, International Trade
Compliance Division
Enclosure