CLA-2 RR:TC:FC
Port Director
U.S. Customs Service
477 Michigan Ave.
Detroit, Michigan 48226
RE: Application For Further Review of Protest No. 3801-96-104871;
Admissibility of Honey From the People's Republic of China
Dear Port Director:
The following is our response to the referral by your
office, dated November 19, 1996 (received on November 22, 1996),
of the request for further review of the above-referenced
protest.
FACTS:
The protest involves four consumption entries covering honey
imported from Canada in which the Port Director, Detroit,
Michigan, in a letter dated October 22, 1996, denied entry of the
honey into the commerce of the United States. The denial was on
the basis that the honey was determined by Customs laboratory
analysis to contain honey from the People's Republic of China
(PRC) without a certificate of origin as required by an agreement
between the PRC and the U.S. Government (Department of Commerce),
effective August 16, 1995 (60 FR 42521). Under the agreement, an
antidumping investigation was suspended and the volume of imports
of honey products from the PRC was restricted within certain
quotas.
In a timely protest under 19 U.S.C. 1514(a)(4), received on
November 5, 1996, the protestant claims that the shipments
contain a mixture of Canadian and Argentine honey and therefore
the requirement for a certificate from PRC is not required by the
agreement and the honey should be admitted into the commerce of
the United States. The protestant challenges the results of the
Customs laboratory testing procedures which shows the present of
chlordimeform indicating that the mixtures contain honey from
PRC.
The protestant requested copies of the Customs laboratory
reports and a meeting with Customs laboratory experts to discuss
the technical issues. An extension of time was also requested to
obtain technical information and prepare for the meeting before a
final Customs decision was made in the protest procedure.
ISSUE:
The issue is whether the Customs laboratory tests are
sufficient to deny the entrance of the mixtures of honey and
whether the Customs Service can grant additional time, in the
facts in this case, to permit the protestant to prepare technical
evidence or arguments to support the claim for the admissibility
of the honey.
LAW AND ANALYSIS:
Section 174.21(b) of the Customs Regulations (relied upon by
the protestant for an extension of time), provides that in the
exclusion of merchandise, the port director shall review and act
on a protest within 30 days from the date the protest was filed,
unless the protestant requests a delay for the presentation of
further evidence or arguments. In no case shall the time
limitation be extended beyond 30 days or such additional time
period as may be agreed to by the person filing the protest. The
regulation was promulgated by Treasury Decision 74-37 (39 FR
2470, January 22, 1974) as the result of a proposal published in
38 FR 21785. This regulation was an administrative decision to
limit the time in which Customs may make a decision in a case
involving the admissibility of merchandise and to permit the
protestant in an adverse decision to obtain judicial review
without undue delay.
However, statutory legislation will override an
administrative regulation. The examination of merchandise by
Customs covered by 19 U.S.C 1499, was amended by Public Law 103-182, on December 8, 1993. Section (c)(5) of 19 U.S.C. 1499 (as
amended), provides as follows:
(5) Effect of failure to make determination.--
(A) The failure by the Customs Service to make a
final determination with respect to the admissibility of detained
merchandise within 30 days after the merchandise has been
presented for customs examination, or such longer period if
specifically authorized by law, shall be treated as a decision of
the Customs Service to exclude the merchandise for purposes of
section 514(a)(4)(19 U.S.C. 1514(a)(4)).
(B) For purposes of section 1581 of title 28,
United States Code, a protest against the decision to exclude the
merchandise which has not been allowed or denied in whole or in
part before the 30th day after the day on which the protest was
filed shall be treated as having been denied on such 30th day.
(C) Notwithstanding section 2639 of title 28, United
States Code, once an action respecting a detention is commenced,
unless the Customs Service establishes by a preponderance of the
evidence that an admissibility decision has not been reached for
good cause, the court shall grant the appropriate relief which
may include, but is not limited to, an order to cancel the
detention and release the merchandise.
The Customs Service has no authority under the facts as
presented to extend the statutory time limitation to make a
decision to allow or deny in whole or in part the protest. After
such time limitation, the protest is deemed by law to be denied
and the protestant's time limitation in which to file an action
in the Court of International Trade begins to run.
No evidence has been submitted to overcome the Customs
laboratory position within the statutory time limitation for
Customs to make a decision concerning the admissibility of the
honey. At this point in time, we are satisfied that the Customs
laboratory position is correct.
HOLDING:
You are directed to formally deny the protest in full, or,
if necessary, permit the protest to be deemed denied in
accordance with 19 U.S.C. 1499.
Please immediately provide the protestant with a copy of
this decision.
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division