OT:RR:CTF:ER
H144604 PTM
Mr. Greg Alvarez
Area Port Director
U.S. Customs and Border Protection
9901 Pacific Highway
Blaine, WA 98230
RE: Application for Further Review of Protest Number 3004-10-100052; Notice of Redelivery
Dear Mr. Alvarez:
This is in reference to your memorandum dated January 7, 2011, with which you forwarded an Application for Further Review of Protest Number 3004-10-100052, filed by Excel Do It Yourself Air Systems (“protestant” or “Excel”), that contests the validity of a Customs and Border Protection (“CBP”) Redelivery Notice (CBP Form 4647) in this case.
FACTS:
The protestant, Excel, imported two air conditioners and made entry on October 22, 2010. On October 25, 2010, CBP issued a Notice to Redeliver (CBP Form 4647) to the protestant for the air conditioners. The CBP Form 4647 contains the entry number in box 6, the date of entry in box 7, and a description of the merchandise in box 10. In Block 9 on the CBP Form 4647 that provides for “Statute(s)/Regulation(s) Violated,” there is no cite to any statute or regulation that was violated, nor are either of the two boxes in Block 9 indicating the basis for the redelivery demand checked. There are no remarks in Block 15 of the CBP Form 4647 entitled “Remarks/Instructions/Other Action Required of Importer.” The instant protest was field on November 24, 2010.
Excel argues that the redelivery notice is not valid since it does not state the reason or legal basis for the demand. It further argues that the redelivery demand violates the Due Process Clause of the Fifth Amendment by denying Excel the opportunity to be heard by CBP. The CBP Port of Blaine, WA, does not dispute that the CBP Form 4647 did not cite a reason or legal basis for the demand for redelivery, but inquires whether that deficiency renders the demand for redelivery legally defective. Further, it takes no position on whether a violation of due process occurred.
ISSUE:
Whether the Notice to Redeliver was legally sufficient.
LAW AND ANALYSIS:
Initially, we note that the protest dated November 24, 2010, is timely inasmuch as it was filed within 180 days from CBP’s demand for redelivery on October 25, 2010. See 19 U.S.C. § 1514(c)(3)(B). A demand for redelivery to CBP's custody is a protestable decision per 19 U.S.C. § 1514(a)(4). Under 19 C.F.R. §174.24, further review shall be accorded a party when the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by CBP. See 19 C.F.R. § 174.24(b). We determine that Excel’s protest involves questions of law or fact not previously ruled upon by CBP when the application for further review was filed. Specifically, we must consider whether the Notice of Delivery issued to Excel by CBP is legally sufficient. Therefore, further review is warranted pursuant to 19 C.F.R. §§174.24(b) and 174.26(b)(1)(iv).
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 the port director 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 [relating to marking and labeling requirements and country of origin determinations], he shall promptly demand the return to CBP custody of any such merchandise which has been released.
Entry bond conditions set forth at 19 CFR § 113.62(d) similarly provide that the principal will timely redeliver merchandise conditionally released from CBP custody that:
(1) Fails to comply with the laws or regulations governing admission into the United States;
(2) Must be examined, inspected, or appraised as required by 19 U.S.C. 1499; or
(3) Must be marked with the country of origin as required by law or regulation.
See 19 C.F.R § 113.62(d). While there is no statutory or regulatory provision regarding the adequacy of a redelivery notice, CBP has previously determined that a Notice to Redeliver must contain sufficient information to enable the importer to protest the demand for redelivery. See C.S.D. 85-22, 19 Cust. B & Dec. 536 (Sept. 19, 1984). In that ruling, CBP analogized a redelivery notice to a notice of a denial of a protest stating that both have the same purpose; to apprise the importer of the basis for redelivery so that the importer can invoke the appropriate laws in seeking administrative relief. Further, CBP held that a sufficient Notice for Redelivery includes: the entry number, entry date, a description of the merchandise that is to be redelivered, and the reason for redelivery. Id.; see also, HQ 225028 (Mar. 14, 1994) (explaining that "a redelivery notice is required to contain enough information to enable the importer to protest the demand for redelivery"). Furthermore, in HQ H171176, dated May 1, 2013, this office found that a Notice to Redeliver that did not provide any basis for redelivery was legally insufficient, because it did not afford the importer with the opportunity to take corrective action or seek administrative relief.
It is undisputed that the demand for redelivery sent to Excel contained no explanation as to why redelivery was demanded. Absent any regulatory basis or narrative information regarding the basis for redelivery, Excel had no opportunity to respond to or protest the Notice of Redelivery. Consequently, consistent with CBP’s previous determinations, the Notice of Redelivery issued by CBP was not legally sufficient. Because we determine that the Notice of Redelivery was deficient, we need not address Excel’s additional claim that it was deprived of due process under the Fifth Amendment to the Constitution.
HOLDING:
Consistent with the decision set forth above, we find that CBP failed to meet the notice requirements to demand redelivery. Therefore, you are hereby directed to GRANT the protest with regard to the legal sufficiency of the Notice to Redeliver.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision to counsel for the protestant, together with the Customs Form 19, 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 International Trade will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division