HQ 223000: Further review of protest #3801-9-001990 concerning a requestfor a Temporary Importation Bond (TIB) substitution for aconsumption entry; 19 CFR 10.31(g).

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 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