HQ 0223000 - Further review of protest #3801-9-001990 concerning a request for a Temporary Importation Bond (TIB) substitution for a consumption entry; 19 CFR 10.31(g). - United States International Trade Commision Rulings

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HQ 223000

January 7, 1992

CON-9-03/LIQ-9-01 CO:R:C:E 223000 TLS

CATEGORY: ENTRY LIQUIDATION

District Director
U.S. Customs Service
Patrick V. McNamara Building
477 Michigan Avenue
Detroit, Michigan 48266

RE: Further review of protest #3801-9-001990 concerning a request for a Temporary Importation Bond (TIB) substitution for a consumption entry; 19 CFR 10.31(g).

Dear Sir:

The above-referenced protest has been forwarded to this office for further review. We have considered the points raised by the protestant and your office. Our decision follows.

FACTS:

The protestant made two entries through Detroit Customs on December 30, 1987. These entries were consumption entries made on article that were to be sold or given away and also involved a truck with a specially-designed trailer, the latter being the subject of this ruling. The protestant requested that the truck- trailer unit be given temporary importation bond (TIB) status after the entries were made because it exported the equipment back to Canada, had intended to do so from the start, and the vehicle is eligible for such treatment in the routine course of business. The importer contends that the truck-trailer was mistakenly included in the articles of merchandise to be entered under the consumption entry process.

ISSUE:

Whether a request for TIB treatment of merchandise entered under consumption entry is proper if the merchandise was mistakenly entered as such.

LAW AND ANALYSIS:

The regulation that governs the substitution of a consumption entry for a TIB entry is covered under 19 CFR 10.31(g). It provides as follows:

(g) Claim for free entry under Chapter 98, Subchapter XIII, HTSUS (Harmonized Tariff Schedule of the United States) may be made for articles of any character described therein which have been previously entered under any other provision of law and the entry amended accordingly upon compliance with the requirements of this section, provided the articles have not been released from Customs custody, or even though released from Customs custody if it is established that the original entry was made on the basis of a clerical error, mistake of fact, or other inadvertence within the meaning of section 520(c)(1), Tariff Act of 1930, as amended, and was brought to the attention of the Customs Service within the time limits of that section. If an entry is so amended, the period of time during which the merchandise may remain in the Customs territory of the United States under bond shall be computed from the date of importation. In the case of article covered by an informal mail entry, such a claim may be made within a reasonable time either before or after the articles have been released from Customs custody. (Emphasis added.)

In the present case, the protestant submits documentation showing that the subject merchandise was in fact entered into Customs territory through a consumption entry on December 1, 1987. This entry was liquidated on March 24, 1989. It is the March date that is of concern here because that is when the merchandise was released from Customs custody. Having been released from Customs custody, the only option left to the importer under Customs regulations is to establish a claim for mistake of fact under 19 U.S.C. 1520(c)(1). Inasmuch as this involved a formal consumption entry and not an informal mail entry, the "reasonable time" proviso under Part 10.31(g) is not applicable. The protestant has not submitted any evidence to show why an exception should be made in this case. It may be true that the importer's original intent was to return the merchandise back to Canada within the time limit required under a TIB, but the fact remains that a TIB was not done. The only options at this point are provided for under Part 10.31(g) and, as noted before, among those the 520(c)(1) option is the only one applicable to this case.

Under 19 U.S.C. 1520(c)(1), an importer may request that an entry be reliquidated if it is shown that the importer made a mistake of fact, inadvertence, or clerical error not amounting to a mistake in the construction of the law. Such a claim must be submitted to Customs within one year after the date of liquidation. In the present case, the importer filed this protest on June 5, 1989, but did not make a claim for reliquidation under 520(c)(1). None has been made to this date and as a consequence such a claim is barred from being raised on the subject entry by the one-year time limitation. Even so, none of the evidence submitted with this protest suggests that a 520 claim would be successful if timely submitted. Therefore, we have no choice but to find that the consumption entry in this case cannot be properly substituted for a TIB entry. The consumption entry cannot be reliquidated and must remain intact.

(Note: We noticed from the entry documentation compiled that the "nonresident" listed on the entry records in this case is GM Productions of Canada, not an individual. Tariff Schedules of the United States Annotated (TSUSA) Headnote 1(b) of Schedule 8, Subpart C provides the following: "For articles admitted into the United States under item 864.50, entry shall be made by the nonresident importing the articles or by an organization represented by the nonresident which is established under the laws of a foreign country or has its principal place of business in a foreign country." Item 864.50 is the provision under which the truck-trailer would presumably have been entered if a TIB entry had been done. Customs has consistently interpreted "nonresident" under these provisions to refer to individuals rather than organizations. Item 864.50 belongs to a group of tariff provisions that allow individuals personal exemptions. These exemptions are non-transferable; as stated above, however, an individual may enter an article under 864.50 on behalf of an organization if the individual maintains direct supervision over the article while it is in the United States. Such is not the case here. Therefore, we must make mention of the fact that the subject entry would not have been eligible for entry under 864.50 unless an individual had entered the truck-trailer on behalf of GM Productions.)

HOLDING:

The consumption entry in this case cannot be legally substituted for a TIB entry. The consumption entry is not to be reliquidated and is to remain intact. This protest should be denied in full. A Form 19, Notice of Action should be attached to this ruling for submittal to the protestant.

Sincerely,

John Durant, Director

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