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HQ 960665




April 10, 1998

CLA-2 RR:CR:TE 960665 RH

CATEGORY: CLASSIFICATION

TARIFF NO.: 5201.00.1200

Port Director
U.S. Customs Service
1 East Bay Street
Savannah, GA 31401

RE: Protest number 1702-97-100086; subheading 5201.00.1200; subheading 5201.00.0022; staple length; 19 C.F.R. ?151.85;

Dear Sir or Madam:

This is in reply to the Application for Further Review of Protest (AFR) number 1702-97-100086, which you forwarded to our office for review. Alexander International filed the protest on behalf of Fieldcrest Cannon, Inc.

FACTS:

The record reflects that on July 15, 1996, the protestant entered 1,994 bales of raw Argentine cotton into the United States under subheading 5201.00.1200 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). At the time of entry, Customs required an examination of the merchandise. Numerous bales from different containers were selected from which to take samples. The samples were forwarded by Customs to the United States Department of Agriculture (USDA) for testing. Based on the information supplied by USDA, Customs issued 203 laboratory reports which are all identical except for the staple length of the bale which is the subject of each report. One of the reports reads as follows:
based on analysis by the savannah customs laboratory and the u.s. department of agriculture laboratory, the sample is cotton fiber, not carded or combed, having a staple length of 28.956 millimeters. The staple length of the cotton falls within the staple lengths of american uplands cotton (gossypium hirsutum). In our opinion, the sample is not harsh or rough cotton.

The average staple length for this lot of 203 samples is 28.600 millimeters. The sample was consumed in analysis.

In light of the laboratory findings, Customs issued a Notice of Action (Customs Form 29) on January 28, 1997, for the rate advance of the merchandise. Customs classified the cotton under subheading 5201.00.2200, HTSUSA, and liquidated the entry on February 21, 1997.

The protestant timely filed this protest seeking reliquidation of the entry and a refund of duties and interest paid. Counsel claims that the protestant was denied the ability to invoke 19 C.F.R. ?151.85 (request for redetermination), because the bales of cotton had been consumed and the sample material destroyed by both the USDA and the importer.

ISSUE:

Was the protestant "denied the ability" to file a request for reconsideration under 19 C.F.R ?151.85?

LAW AND ANALYSIS:

The Customs Regulations governing the testing and sampling of cotton are set forth in 19 C.F.R. ?151 Subpart F. Section 151.84 of the Customs Regulations (19 C.F.R.? 151.84) provides that the district director shall have one or more samples of each sampled bale of cotton stapled by a qualified customs officer, or a qualified employee of the Department of Agriculture and "shall promptly mail the importer a notice of the results obtained."

In this case, Customs sent the cotton samples in question to the USDA in Memphis, Tennessee for analysis shortly after entry of the merchandise on June 14, 1996. The final laboratory reports were completed on August 28, 1996. There were 203 laboratory reports issued by Customs based on the USDA analysis, all of which had to be reviewed and processed by the field import specialist (FIS). The results were then forwarded to the National Import Specialist (NIS) in New York for review on November 21, 1996. The NIS responded to the port on January 9, 1997 and the protestant was mailed the Notice of Action on January 28, 1997.

In light of the fact that Customs sampled 203 bales of cotton, we find that the processing time described in the preceding paragraph was reasonable for an entry of this magnitude. Once Customs completed its review of this entry, the protestant was notified of the determination within 19 days. We find that this satisfies the requirements of 19 C.F.R. ?151.84.

Section 151.85 of the Customs Regulations (19 C.F.R.?151.85) reads in its entirety:

If the importer is dissatisfied with the port director's determination, he may file with the port director, within 14 calendar days after the mailing of the notice, a written request in duplicate for a redetermination of the staple length. Each such request shall include a statement of the claimed staple length for the cotton in question and a clear statement of the basis for the claim. The request shall be granted if it appears to the port director to be
made in good faith. In making the redetermination of staple length, the port director may obtain an opinion of a board of cotton examiners from the U.S. Department of Agriculture, if he deems such action advisable. All expenses occasioned by any redetermination of staple length, exclusive of the compensation of Customs officers, shall be reimbursed to the Government by the importer.

Counsel claims that the protestant was denied the ability to invoke 19 C.F.R. ?151.85 because the bales of cotton had been consumed and the sample material destroyed by both the USDA and the importer. We find this claim without merit. The regulation (19 C.F.R. ?151.85) requires the importer to file a request for redetermination within 14 days of receiving notice of the port director's determination and must state a basis for the claim. The decision to grant or deny the request is left to the discretion of the port director. In any event, the burden to seek a redetermination was on the protestant, which it failed to do. Since the protestant failed to seek a redetermination and state a claim within the time prescribed by the regulation, it cannot now avail itself of the regulation to support the protest.

HOLDING:

Based on the foregoing, we find that Customs promptly notified the protestant of the test results on the imported cotton in accordance with 19 C.F.R. ?151.84. Moreover, the protestant failed to file a request for reconsideration under 19 C.F.R.

In accordance with section 3A(11)(b) of Customs Directive Number 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be attached to the Customs Form 19, Notice of Action, and furnished to the protestant 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 (On that date) the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Ruling Module in ACS and to the public via the Diskette Subscription Service, Freedom of Information Act, and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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