HQ 083050: Application for Further Review of Protest 1001-7-011000 of August 6, 1987

us-cbp-cross-rulings-hq-083050HQ 083050: Application for Further Review of Protest 1001-7-011000 of August 6, 1987Guidance

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.





                                        HQ 083050

                                     March 23, 1989

             CLA-2 CO:R:C:G  083050  SM

             CATEGORY:  Classification

             TARIFF NO.:

             Area Director of Customs
             JFK Airport Area
             JFK Airport, Bldg. 178
             Jamaica, NY  11430

             RE:   Application for Further Review of Protest 1001-7-011000
                   of August 6, 1987

             Dear Sir:

                   This protest and application for further review was
             filed by Serko, Simon, and Abbey on behalf of Profile Mens-
             wear, Ltd. (PMI).  It concerns your decision that a shipment
             of 1,411 men's suits covered by entry 336-0248090-8 of March
             16, 1987, required textile visas for category 443 and cate-
             gory 643.

             FACTS:

                   The merchandise covered by the entry was claimed as a
             product of Italy with Yugoslavia indicated as the country of
             exportation.  A Request for Information, Customs Form (CF) 28,
             sent on April 10, 1987, asked for details of each operation
             performed in Italy and in Yugoslavia.  The importer's response
             was dated April 27.  On May 8, a notice was issued on CF 4647
             indicating that the country of assembly and tailoring, Yugo-
             slavia, was the country of origin of the suits, and that visas
             for categories 443 and 643 were required.  The visas were not
             presented, and a claim for liquidated damages was issued on
             June 25.  JFK Area Case 87-4701-24167.  This protest was
             timely filed on August 6, the ninetieth day after the date of
             the notice.

                   Counsel for the importer protests, first, that the
             merchandise was properly marked as to country of origin and,
             second, that there was no breach of the entry bond since
             Customs failed to make a timely demand under that bond.  With
             regard to the first point, he claims reliance on a ruling
             letter, 726826 of November 20, 1984, that stated, in response
             to the importer's inquiry of October 30, that suits assembled
             in Yugoslavia from components cut in Italy could be marked to
             indicate Italy as the country of origin for marking purposes.












                                           -2-



             With regard to the second point, he claims that 19 C.F.R. {
             113.62(d) required Customs to issue the notice within 30 days
             of the date of release of the merchandise.  Since the notice
             was sent 53 days after release, he claims that Customs cannot
             collect liquidated damages.

             ISSUE:

                   Is Italy or Yugoslavia the country of origin of the
             suits?  Is Customs precluded from making a claim under the
             bond because an untimely demand was made?

             LAW AND ANALYSIS:

                   The textile country of origin regulations, 19 C.F.R. {
             12.130 (1988), set out criteria for determining the country of
             origin of textile products processed in more than one foreign
             country.  Section 12.130(e)(1)(v) provides specifically that a
             textile article will usually be the product of a country where
             it has undergone "[s]ubstantial assembly by sewing and/or
             tailoring of all cut pieces of apparel articles which have
             been cut in another foreign . . . country . . . into a
             completed garment (e.g., the complete assembly and tailoring
             of all cut pieces of . . . suits . . . .)"

                   The information supplied by the importer in response to
             the CF 28 of April 10, 1987, as well as his original letter of
             October 30, 1984, indicate that in Italy fabric was cut into
             pieces for suits.  The pieces were then transported to Yugo-
             slavia, where they were assembled and tailored into men's
             suits.  The operations in Yugoslavia thus fall squarely with-
             in the description in 19 C.F.R. { 12.130(e)(1)(v), and we
             agree with your determination that Yugoslavia is the country
             of origin.

                   Counsel for the importer does not maintain that Italy,
             and not Yugoslavia, is the country of origin of the suits
             under the regulations.  Rather, he claims that Italy was
             correctly claimed to be the country of origin because the
             marking ruling issued to PMI in November of 1984 has never
             been revoked.

                   We cannot agree.  The ruling was issued before the April
             4, 1985, effective date of the textile country of origin
             regulations, and also before the March 15, 1986, effective
             date of category 443 or category 643 restrictions on merchan-
             dise from Yugoslavia.  The merchandise was entered on March
             16, 1987, nearly two years after the effective date of the
             regulations.  The new regulations went into effect only after











                                           -3-



             several notices in the Federal Register and an extensive
             comment period.  Numerous outstanding rulings would have been
             effectively revoked by this major regulatory change, which was
             promulgated pursuant to Executive Order 12475 of May 9, 1984.

                   Thus the suits were properly determined to be products
             of Yugoslavia under the regulations.  Such merchandise is sub-
             ject to quantitative restrictions in accordance with the terms
             of the U.S.-Yugoslav bilateral textile agreement negotiated
             pursuant to Congressional delegation of authority in section
             204 of the Agricultural Act of 1956, as amended, 7 U.S.C. {
             1854 (1982).  The suits could not be admitted into the United
             States unless the proper original visa stamps were presented.

                   Counsel for the importer further argues that the notice
             was not timely and that Customs has therefore failed to meet
             the condition precedent of a timely demand under the import-
             er's bond.  He claims that language in 19 C.F.R. { 113.62
             (1988), incorporated by reference into the bond, would have
             required Customs to issue the notice within 30 days of the
             date of release of the merchandise (since no later "condi-
             tional release period" applies in this case).

                   Section 113.62(d) is the bond principal's agreement to
             redeliver merchandise released conditionally before all
             required evidence is produced or before quantity, value, or
             admissibility is determined if the merchandise:

                        (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. 499;

                        (3) Must be marked with the country of origin as
                        required by law or regulation.

             It concludes with the statement that "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 . . . ."

                   Counsel for the protestant assumes that Customs relies
             on section 113.62(d) to secure the importer's performance.
             However, section 113.62(e) contains the agreement to rectify
             any noncompliance with the law and regulations governing the
             admission of the merchandise into the United States.  It pro-
             vides that "if merchandise is released conditionally to the
             principal before its right of admission into the United States











                                           -4-



             is determined, the principal, after notification, agrees . . .
             to . . . do any other thing to the merchandise in order to
             comply with the law and regulations governing its admission .
             . . ."   The goods were subject to visa requirements by virtue
             of the bilateral agreement with  Yugoslavia, as a result of
             the application of 19 C.F.R. { 12.130, which determined the
             country of origin.  The notice, CF 4647, informed the pro-
             testant that in order for the goods to be admissible, the
             protestant had to furnish the required visas.

                   The protestant does not claim that the demand to present
             a proper visa was complied with, or that the demand was made
             after liquidation had become final.  Rather, the protestant
             relies solely on the claim that Customs cannot secure perform-
             ance under section 113.62(d) of the bond contract.  That reli-
             ance is misplaced.  The demand made is to furnish proper visas
             in accordance with 19 C.F.R. { 12.130, the bilateral agreement
             with Yugoslavia, 19 U.S.C.A. { 1484(a)(2)(B) (1980 and Supp.
             1988), and 19 U.S.C.A. { 1485(a)(4) (1980 and Supp. 1988).
             Performance under those provisions is secured by the agreement
             in section 113.62(e) to rectify noncompliance with provisions
             of admission.  More importantly, the issue for the purpose of
             the protest is whether Customs could demand a visa and not
             whether that demand could be enforced under a bond condition.

             HOLDING:

                   Since the required visas from Yugoslavia were not pre-
             sented, you should deny the protest in full.  A copy of this
             decision should be sent to the protestant along with your Form
             19 Notice of Action.

                                        Sincerely,



                                        John Durant, Director
                                        Commercial Rulings Division


Continue your research in ChatGPT or Claude

Connect Omnilex to search the legal corpus from your AI assistant.