OT:RR:CTF:EPDR H328699 IPW
Center Director Apparel, Footwear and Textiles
Center of Excellence and Expertise 1100 Raymond Blvd. Newark, NJ 07102
Attn.: Adriana Garcia, Supervisory Import Specialist
RE: Protest No. 2809-22-109110; Legal Sufficiency of Notices to Redeliver
Dear Center Director,
This decision is in response to an Application for Further Review of Protest Number 2809-22-109110, filed by Ansell Healthcare Products LLC (“Ansell” or “protestant”), that contests the legal sufficiency of two U.S. Customs and Border Protection (“CBP”) Notices to Redeliver (CBP Form 4647).
FACTS:
On January 26, 2022, Ansell imported two shipments of disposable rubber gloves produced in Malaysia by YTY Industries Holdings Sdn Bhd (“YTY”). The merchandise became subject to a Withhold Release Order (“WRO”) for forced labor concerns published on January 28, 2022. On January 31, 2022, Ansell entered the goods, and CBP released the merchandise.
On February 10, 2022, CBP issued a Notice to Redeliver to the protestant for each entry of disposable rubber gloves. In the block for “Statutes/Regulations Violated,” the notices stated the importer violated 19 C.F.R. § 113.62. In the block for “Remarks/Instructions/Other Action Required of Importer,” (“Remarks”), the notices stated that “CBP requires the merchandise to be delivered to CES Pacific Coast Container” in Oakland, California. On March 2, 2022, Ansell protested the Notices to Redeliver alleging that they were not legally sufficient because they failed to provide a reason for the redelivery. Ansell voluntarily returned 1788 of the 2695 cartons from one entry and 2513 of the 2695 cartons from the other. In a letter to CBP, dated March 7, 2022, Ansell explained that it could not return all the cartons entered because they were “no longer available.” On March 7, after receiving the gloves, CBP issued two Notices of Detention to Ansell that listed the WRO as the reason for detention.
ISSUE:
Whether the Notices to Redeliver sufficiently provided adequate notice of the basis for CBP’s demands.
LAW AND ANALYSIS:
As an initial matter, we note that the protest, dated March 2, 2022, was filed within 180 days from CBP’s demand for redelivery on February 10, 2022 and therefore timely. See 19 U.S.C. § 1514(c)(3)(B). A demand for redelivery is a protestable decision per 19 U.S.C. § 1514(a)(4). Further review of a protest is granted if the protest is alleged to involve questions of law or fact which have not been ruled upon by CBP. 19 C.F.R. § 174.24(b). We determine that Ansell’s protest involves questions of law or fact not previously ruled upon by CBP. Specifically, we address whether the Notices to Redeliver issued to Ansell were legally sufficient.
The CBP regulations governing the redelivery of merchandise are found in 19 C.F.R. § 141.113 and 19 C.F.R. § 113.62. Section 141.113(d) states as follows:
Other merchandise not entitled to admission. If at any time after entry an authorized CBP official finds that any merchandise contained in an importation is not entitled to admission into the commerce of the United States for any reason not enumerated in paragraph (a), (b), or (c) of this section, an authorized CBP official shall promptly demand the return to CBP custody of any such merchandise which has been released.
The entry bond conditions set forth at 19 CFR § 113.62(d) provide that the principal will timely redeliver merchandise conditionally released from CBP custody that, in pertinent part “(1) fails to comply with the laws or regulations governing admission into the United States. . . .”
The Court of International Trade has stated that a redelivery notice is legally sufficient if “a reasonable importer would have had adequate notice of the basis for Custom’s demands.” Essex Mfg. v. United States, 27 CIT 630, 650 (Apr. 29, 2003) (hereinafter “Essex”). Adequate notice is dependent upon the content and the context of the Notice to Redeliver. See id; see also Western Power Sports, Inc. v. United States, 31 CIT 959, 961 (2008) (“procedural due process only requires that within the context of the notice, the surrounding context would alert a reasonable importer to the issue at hand”).
In Essex, garments of supposed Mongolian origin were imported without a Certificate of Origin. 27 CIT at 631. Thereafter Customs sent a Notice to Redeliver to verify the country of origin. On the notice’s section for “Statute(s)/Regulation(s) Violated,” Customs wrote “Certificate of origin for Mongolia.” Under the Remarks section, the notice stated that “[m]erchandise must be redelivered into Customs Custody. Per Mongolian Customs letter dated 9/22/00, [‘]No records are found that ‘Mongol Jindu’ company cleared 43506 pieces of goods for export with the certificate of origin MNUS 1917 A0002400.[’].” Essex, 27 CIT at 636. The importer challenged the legal sufficiency of this Notice to Redeliver on the grounds that it did not identify the basis for the redelivery. The court concluded that, while not a “model of clarity,” the content of the Notice to Redeliver was legally sufficient because it contained “the basic thrust of Customs’ concern—the merchandise’s country of origin, and the potential for a transshipment violation.” Id at 646.
The court in Essex also held that the context surrounding the notice can apprise a reasonable importer of the basis for the redelivery. 27 CIT at 650. If a party receives a notice that “excite[s] attention,” and the party has sufficient information to reasonably lead them to conclude its purpose, they are deemed “conversant of it.” See id. at 650-51 (citing Lord & Taylor v. United States, 26 CCPA 151 (1938)). In Essex, Customs had discussed their underlying concern of the country of origin in a phone call with the importer’s counsel. Id. at 651. The court held that this conversation would have apprised any reasonable importer with the reason for the redelivery. Id.
In Western Power Sports, 31 CIT at 960, an importer claimed that certain imports of clothing were from Hong Kong origin. Customs held that the importer failed to substantiate the origin and issued a Notice of Redeliver that explained it was acting pursuant to 19 C.F.R. § 141.113(b), which provides that Customs may recall textile goods imported to the United States within 180 days of their release if it determines the country of origin was misrepresented. Id. at 961. The court held that the notice was sufficient because it alerted the importer of the issue with the clothing’s origin. Id.
By contrast, in Headquarters Ruling Letter (“HQ”) H171176, dated May 1, 2013, CBP issued a Notice to Redeliver that cited no authority in the box “Statute(s)/Regulation(s) Violated,” and only stated “[m]erchandise described above must be immediately redelivered to CBP” in the Remarks section. Without a cited authority or reason for redelivery, CBP held the notice to be legally insufficient because it did not give the importer an opportunity to adequately protest the demand.
In this case, the notices state the importer violated 19 C.F.R. § 113.62 and advise that CBP requires the merchandise to be redelivered. Section 113.62 provides the conditions of a bond for basic importation and entry. Unlike the notices in Essex and Western Power Sports, which indicated that the country of origin was the basic thrust of Custom’s concern, 27 CIT at 646; 31 CIT at 961, identifying 19 C.F.R. § 113.62 as the “Statute(s)/Regulation(s) Violated” gives no indication that the WRO was the basis for redelivery. Moreover, like the insufficient Remarks section in HQ H171176, which merely stated that the merchandise must be immediately redelivered to CBP, here the Remarks sections only provides instruction on where to redeliver the merchandise. No reason is given. Taken together, the “Statute(s)/Regulation(s) Violated” and Remarks sections fail to apprise the importer of the basis for redelivery, i.e., the WRO.
Furthermore, there is no context surrounding the Notices to Redeliver to apprise Ansell of the basis for redelivery. In Essex, the importer knew the basis for redelivery when Customs directly contacted their representation to discuss their concern with the country of origin. 27 CIT at 651. Here, no direct communication informed Ansell that their imported merchandise was subject to the WRO until they were issued a Notice of Detention. The Notice of Detention was issued twenty-five days after CBP sent the Notice to Redeliver, and only after Ansell voluntarily redelivered some of the imported merchandise. The content and the context of the Notices to Redeliver failed to sufficiently apprise Ansell with the basis for CBP’s demand. Therefore, the Notices to Redeliver were legally insufficient.
HOLDING:
You are hereby directed to GRANT the protest IN FULL. Consistent with the decision set forth above, we find that the Notices to Redeliver were legally insufficient.
You are instructed to notify the Protestant of this decision no later than 60 days from the date of this decision. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to this notification. Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel and the public on the Customs Rulings Online Search System (“CROSS”) at https://rulings.cbp.gov/, or other methods of public distribution.
Sincerely,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division