OT: RR: BSTC: IPR H345452 RLP
Center Director
Apparel, Footwear and Textiles
Center of Excellence and Expertise
JFK Airport Building 77
New York City, NY 11430
Attn.: Shelley Thalrose, Supervisory Import Specialist
RE: Protest No. 2704-2014-101137; Legal Sufficiency of Notice to Redeliver
Dear Center Director,
This decision is in response to an Application for Further Review of Protest Number
2704-2014-101137, filed by Siderick International, Inc. (“Siderick” or “protestant”), that contests
the legal sufficiency of a U.S. Customs and Border Protection (“CBP”) Notice to Redeliver (CBP
Form 4647).
FACTS:
The protestant, Siderick, imported a shipment of 308 cartons of men’s shoes on June 2,
2014 into the Port of Long Beach. After making entry on June 11, 2014, CBP released the
merchandise and then issued a Notice to Redeliver on June 13, 2014 to the protestant for all 308
cartons of shoes. The CBP Form 4647 contained the entry number in Box 6, the date of entry in
Box 7, and a general description of the merchandise in Box 10 of “Men Pu and Leather shoes.”
Then in Box 15, CBP remarked:
REDELIVERY IPR Citations: 141.113; 113.62(d); 113.26. The following entry has
been released from Customs and Border Protection and are [sic] suspected of
containing merchandise in violation of intellectual property rights (IPR) registered
with Customs and Border Protection: Gucci and Salvatore Ferragamo. You are
required to immediately hold intact all merchandise until it can be determined that
the style numbers imported are not subject to violation of CBP laws and regulations.
If it is determined that the merchandise is in violation, you will be required to
deliver the violative footwear to CBP custody within 30 days from the date of this
notice. Failure to comply with this notice may result in liquidated damages and/or
penalty action against your company.
Siderick argues that this redelivery notice is legally insufficient because it lacks enough
information for Siderick to protest the redelivery demand and is overly broad. Specifically, the
protestant claims that the notice does not explicitly cite the statute or regulation at issue in Box 9
nor does it indicate why CBP suspects a portion of the shipment of an intellectual property
violation. Siderick also alleges that only a small amount of the merchandise is at issue, that CBP
did not adequately describe this merchandise, and that demanding redelivery of the entire
shipment unjustly deprives it of its property.
The CBP Port of Long Beach contends that the notice is legally sufficient because CBP
included in the remarks section the regulations and statutes at issue as well as instructions on
completing the redelivery demand. Furthermore, the Port disputes the claim that only a small
portion of the shipment contained a potential intellectual property violation and believes most, if
not all, of it may have been imported in violation of 19 U.S.C. § 1526(e). The Port also explains
that it could not narrow the scope of the redelivery demand because Siderick classified the items
on the invoice under two different tariffs and labeled them all “Siderick.”
ISSUE:
Whether the Notice 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 July 21, 2024, was filed within 180
days of CBP’s demand for redelivery on June 13, 2014 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 Siderick’s
protest involves questions of law or fact not previously ruled upon by CBP. Specifically, we
address whether CBP issued a legally sufficient Notice to Redeliver to Siderick.
Siderick claims that the Notice to Redeliver was legally insufficient because it did not
include enough information regarding the legal violation and the allegedly inadmissible
merchandise for an adequate protest of the redelivery demand. Based on our review, however,
the notice informed Siderick of the basis of the redelivery demand with enough specificity under
the circumstances to allow Siderick to protest the action.
The CBP regulations governing redelivery of merchandise for intellectual property
violations are 19 C.F.R. § 141.113, 19 C.F.R. § 133.26, and 19 C.F.R. § 113.62(d). Section
141.113(d) generally authorizes CBP to “demand for the return to CBP custody of any such
merchandise which has been released” and “is not entitled to admission into the commerce of the
United States.” CBP regulations then specifically provide for intellectual property violations
under 19 C.F.R. § 133.26:
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If it is determined that merchandise which has been released from CBP custody is
subject to the restrictions of § 133.21, § 133.22 or § 133.23 of this subpart, an
authorized CBP official shall promptly make demand for the redelivery of the
merchandise under the terms of the bond on CBP Form 301, containing the bond
conditions set forth in § 113.62 of this chapter, in accordance with § 141.113 of this
chapter. If the merchandise is not redelivered to CBP custody, a claim for liquidated
damages shall be made in accordance with § 141.113(h) of this chapter.
Similarly, the entry bond conditions set forth in 19 C.F.R. § 113.62(d) further state that
the principal will timely redeliver the 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.
CBP has not specifically ruled on the legal sufficiency of a Notice to Redeliver for an
intellectual property violation before. 1 However, both the Court of International Trade (CIT) and
Customs have repeatedly found a Notice to Redeliver legally sufficient if it provides a reasonable
importer with the basis for the redelivery demand under the circumstances. Western Power
Sports, Inc. v. United States, 32 Ct. Int'l Trade 959, 961 (2008); Essex Mfg. v. United States, 27
Ct. Int'l Trade 630, 645 (2003); HQ H328699; C.S.D. 85-22, 19 Cust. B & Dec. 536 (Sept. 19,
1984). If this legal basis includes enough information for a reasonable importer to protest the
redelivery demand, the notice satisfies due process. Essex, 27 CIT at 646, citing Mullane v. Cent.
Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).
For example, in Essex Mfg. v. United States, the CIT found the Notice to Redeliver
legally sufficient despite not explicitly citing the statute or regulation at issue. 27 Ct. Int'l Trade
at 654. Customs in this case issued a Notice to Redeliver for some garments after being unable to
verify the importer’s Mongolian Certificate of Origin. Id. at 635. The notice had checked the
“Other, Namely” box, remarking “Certificate of origin for Mongolia.” Id. In the space for
remarks, Customs also stated: “[m]erchandise must be redelivered into Customs Custody. Id. 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.[’].” Id.
The court held that the content of the notice and the context surrounding it provided
Essex with sufficient information about the basis for Customs’ demand. Id. at 654. While the
notice’s wording was not “ideal” nor a “model of clarity,” it still contained “the basic thrust of
Customs’ concern—the merchandise’s country of origin, and the potential for a transshipment
1
The case of ICCS USA Corp. v. United States did involve a Notice to Redeliver for counterfeit merchandise, but
neither CBP nor the Court of International Trade considered the legal sufficiency of the notice’s contents. 357
F.Supp. 3d 1314, 1318, 1320–24 (Ct. Int’l Trade 2018), aff'd, 952 F.3d 1325 (Fed. Cir. 2020). Instead, CBP denied
the protest after finding the merchandise bore counterfeit UL trademarks, and the court upheld CBP’s decision based
on a similar examination of whether the merchandise was authorized to bear the UL trademarks. Id.
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violation.” Id. at 646. Furthermore, a notice is sufficient if it “excite[s] attention and put[s] the
party on his guard” and the party has adequate information to reasonably conclude its purpose.
Id. at 650–51, citing Lord & Taylor v. United States, 26 CCPA 151, 156 (1938) (stating that “a
notice…if sufficient ‘to excite attention and put the party on his guard and call for inquiry, is
notice of everything to which such inquiry might have led’”). Essex’s multiple conversations
with Customs in response to the Notice of Redelivery and attempts to resolve the issue indicated
that it had sufficient awareness of the basis for the redelivery demand. Id. at 652–53.
Similarly, in Western Power Sports, Inc. v. United States, the CIT found that the contents
of the Notice of Redelivery for clothing satisfied the importer’s due process. 32 Ct. Int'l Trade at
961. The importer argued that the notice did not provide a specific list of reasons why Customs
rejected the country of origin documents it previously submitted. Id. at 960. However, the notice
contained the entry number, the entry date, and a general description of the merchandise. Id. at
961. The notice also cited § 19 C.F.R. 141.113(b), which allows Customs to recall imported
textiles if it determines the country of origin was misrepresented. Id. Consequently, the court
held that Customs sufficiently notified the importer that the issue was with the clothing’s claimed
country of origin. Id.
In contrast to these cases, CBP’s previous rulings in H171176, H144604, and H328699
all found the Notice to Redeliver insufficient because the full contents of the notice did not
inform the importer of the basis for the redelivery demand. Siderick correctly notes that in
H171176 and H144604 CBP found the notice insufficient because the notices did not cite the
specific statute at issue, and CBP made a similar determination in H328699 as well. In these
cases, however, CBP did not include any reference or remarks in any part of the Notice to
Redeliver regarding the violation at issue.
In Siderick’s case, like in Essex, CBP included in the notice’s remarks section additional
information about the redelivery demand. Specifically, CBP stated that the shipment is
“suspected of containing merchandise in violation of intellectual property rights (IPR) registered
with Customs and Border Protection Gucci and Salvatore Ferragamo.” While CBP did
incorrectly cite 19 C.F.R. § 113.26 instead of 19 C.F.R. § 133.26 and did not cite 19 U.S.C. §
1526, Siderick still received notice of the issue: a violation of Gucci’s and Salvatore Ferragamo’s
intellectual property rights. Siderick stated in its protest that it discussed the matter with CBP and
even argued that the merchandise has its own trademarks, independently designed and
manufactured. Given these considerations, Siderick clearly had notice of the issue and
understood the basis for the redelivery demand. Siderick, nevertheless, still failed to provide
CBP with any additional documentation or information to rebut CBP’s allegation of an
intellectual property violation.
Furthermore, CBP’s redelivery demand was not overly broad given the circumstances of
the case. The notice explicitly indicates that CBP is concerned about shoes that bear intellectual
property similar to those owned by Gucci and Salvatore Ferragamo. CBP had no other means of
distinguishing between the shoes in the shipment or reducing the scope of the redelivery demand
because Siderick’s entry documents did not provide any differentiating information regarding the
shoe designs. For example, the Entry Summary only states “Men PU and Leather Shoes,” and the
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packing list only describes the shoes as having the Siderick label, as being different generic black
and brown colors, and as being made of different types of leather.
Consequently, the Notice to Redeliver was legally sufficient because the content and
overall circumstances surrounding the notice adequately apprised Siderick of the basis of the
redelivery demand to allow it to protest the action.
HOLDING:
You are hereby directed to DENY the protest IN FULL. Consistent with the decision set
forth above, we find that the Notice to Redeliver was legally sufficient.
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,
Jennifer L. Petelle, Director
Border Security and Trade
Compliance Division
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