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HQ 959989

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December 5, 1996

CLA-2 RR:TC:FC

CATEGORY: ADMISSIBILITY

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

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