United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 2004 HQ Rulings > HQ 087779 - HQ 116088 > HQ 115688

Previous Ruling Next Ruling
HQ 115688





September 12, 2002

RES-2-30-RR:IT:EC 115688 GG

CATEGORY: RESTRICTED MERCHANDISE

Ms. Margaret R. Fearon
Area Port Director
U.S. Customs Service
9901 Pacific Highway
Blaine, WA 98230

RE: Protest with Application for Further Review; Protest No. 3004-02-100076; Demand for Redelivery; 19 CFR § 174.21(b); Shrimp Declarations; DSP-121; Signature Requirements

Dear Ms. Fearon:

This is in response to your memorandum PRO-2-NG:B, dated May 21, 2002, in which you forwarded to us the above-referenced protest and application for further review. Our decision follows.

FACTS:

The protestant, Pacific Salmon Industries Inc. of Surrey, British Columbia (“Pacific Salmon”), made two entries of frozen processed shrimp on February 26, 2002, in the port of Blaine, Washington. The shrimp had been exported from Vietnam on January 29, 2002. On March 16, 2002, Customs demanded redelivery of the two shipments by issuing redelivery notices on Customs Form (CF) 4647. The notices instructed Pacific Salmon to redeliver the shrimp intact to Customs within 30 days of the date of the notices.

Customs demanded redelivery on the basis that the shrimp were inadmissible because they were imported in violation of Section 609 of the Departments of Commerce, Justice and State, the Judiciary, and Related Agencies Appropriations Act, 1990 (P.L. 101-162) (“the Act”). The Act, which is codified as a note to 16 U.S.C. § 1537, prohibits the importation of shrimp which have been harvested with fishing technology that may harm sea turtles. Since 1996, all shipments of shrimp and shrimp products imported into the United States must be accompanied by a declaration (DSP-121, revised). This document must attest that the shrimp accompanying the declaration were harvested either under conditions which do not adversely affect sea turtles, or in waters subject to the jurisdiction of a nation that is certified by the U.S. Department of State as not posing a threat of incidental taking of sea turtles in the course of commercial shrimp trawl harvesting.

Pacific Salmon submitted copies of the same DSP-121 with each of the two entries. Since Vietnam is not a certified nation, the exporter declared on the DSP-121 that the shrimp had been harvested by aquaculture, a type of farming which is deemed not harmful to sea turtles. However, upon review after release Customs discovered a problem with the government signature on the DSP-121.

Revised State Department guidelines (64 FR 36946, 36949, dated July 8, 1999) require government officials of uncertified harvesting nations to sign the DSP-121’s. Vietnam’s Ministry of Fisheries in mid-February, 2002, provided the United States with a list of the names and signature samples of the officials authorized to sign the DSP-121’s on behalf of the Vietnamese government. According to the U.S. Department of State, those particular officials had been the designated signatories prior to the time the shrimp shipments in question were exported from Vietnam. The signature of the government official on the DSP-121 submitted by Pacific Salmon did not match any of the signatures approved by Vietnam.

Customs requested redelivery, and the protest was filed. In addition to protesting the redelivery demand, the protestant requested expedited disposition in accordance with 19 CFR § 174.21(b).

ISSUE:

Whether 19 CFR § 174.21(b) requires Customs to act upon a protest of a demand for redelivery within 30 days? Whether the demand for redelivery was proper?

LAW AND ANALYSIS:

Section 514(a)(4) of the Tariff Act of 1930, as amended (19 U.S.C. § 1514(a)(4)), authorizes the filing of a protest against a decision by Customs as to “the exclusion of merchandise from entry or delivery or a demand for redelivery to customs custody under any provision of the customs laws, except a determination appealable under section 1337 of [Title 19, United States Code].” Section 1337, which concerns unfair trade practices, is not relevant here. The corresponding Customs regulation is found in 19 CFR § 174.11(d). As a general rule, Customs is required to review and to act upon protests within 2 years from the date the protest was filed. See 19 CFR § 174.21(a). However, section 174.21(b) provides that if the protest relates to an administrative action involving exclusion of merchandise from entry or delivery under any provision of the Customs laws, action must be taken within 30 days from the date the protest was filed. This exception applies only to situations in which Customs has detained a shipment upon arrival pursuant to 19 U.S.C. § 1499(c), and a protest is filed against Customs failure to make a final determination with respect to admissibility. See Treasury Decision (T.D.) 99-65. It does not pertain to circumstances in which a protest is lodged against a demand for redelivery of already released merchandise. Therefore, the protestant’s request for expedited resolution is denied.

With respect to the redelivery notice itself, we note that it was timely issued. Section 113.62(d) of the Customs Regulations (19 CFR § 113.62(d)) provides, in pertinent part, that any demand for redelivery will be made “no later than 30 days after the date that the merchandise was released or 30 days after the end of the conditional release period (whichever is later).” The shrimp shipments were released on February 26, 2002, and the CF 4647’s were dated March 16, 2002. The redelivery notices were clearly issued within the 30-day window prescribed by regulation.

Pacific Salmon claims that the redelivery request was invalid because: 1) there was no violation of Section 609, since the shrimp were harvested in an aquaculture facility; 2) it complied with the State Department guidelines, because a DSP-121, signed by a government official from Vietnam, accompanied the shipments; 3) Customs had no authority to question the validity of the DSP-121; 4) the list of authorized signatories was agreed to just prior to the date the shrimp were exported, and transmitted to Customs after the shrimp had been exported from Vietnam; and 6) notice of the list was not provided to the importing community. We will examine each of these related arguments in turn.

The first claim – that there was no violation because the shrimp were harvested at an aquaculture facility – is not supported by the available evidence. As will be discussed in more detail below, a declaration made on a DSP-121 that shrimp were harvested by aquaculture must be certified by an authorized government official. Pacific Salmon’s DSP-121 did not meet this requirement. The second claim – that Pacific Salmon complied with State Department guidelines because a signed DSP-121 accompanied the shipments – must also fail for the same reason.

The protestant next claims that only the State Department, not Customs, has the authority to question the validity of a DSP-121. We disagree. Section 484(a)(1)(A)(i) of the Tariff Act of 1930, as amended (19 U.S.C. § 1484(a)(1)(A)(i)), requires the importer of record to make entry by filing with Customs such documentation or information “as is necessary to enable the Customs Service to determine whether the merchandise may be released from customs custody.” In addition, section 484(a)(2)(C) states that the Secretary of the Treasury “shall also provide, to the maximum extent practicable, for the enforcement of laws governing the importation and exportation of merchandise.” Customs in examining the declarations for accuracy is merely exercising its authority under 19 U.S.C. §1484 to enforce section 609(b)(1) of the Act, which prohibits the importation of shrimp which have been harvested with fishing technology that may harm sea turtles. We would also note Customs has worked closely with the State Department in all matters concerning the implementation and enforcement of the Act, including matters relating to the accuracy of DSP-121’s. Clearly, Customs has the requisite authority to challenge the validity of these declarations.

Pacific Salmon also claims that the redelivery request was improper because the list of authorized names and signatures of Vietnamese government officials was provided after the shrimp shipments had already been exported. It argues that any requirement that a signature from that list appear on a particular DSP-121 did not arise until after the date of exportation. Our inquiries to the State Department reveal that the list merely confirmed the names and signatures of the individuals who had been employed as approved certifiers for quite some time. Those same officials were the only persons authorized to sign DSP-121’s at the time the DSP-121 in question was prepared.

The protestant further contends that Customs lacked a legal basis to seek redelivery of the shrimp because the importing community was not given notice of the creation of the list of authorized names. Since the exporters, not the importers, make the declaration regarding harvesting methods on the DSP-121, and the government officials’ job is to verify the accuracy of the declaration, only the exporters have a pressing need to know the identity of the authorized officials. It is not incumbent on Customs to provide such a list to importers.

HOLDING:

Customs upon receipt of a protest of a demand for redelivery is not required by 19 CFR §174.21(b) to act upon the protest within 30 days. The demand for redelivery was proper.

The protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office 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, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Glen E. Vereb
Acting Chief

Previous Ruling Next Ruling