HQ 456502: Application for further review of protest; exclusion fromconsumption entry of an importation of certain long rangecordless telephones

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 456502

                         December 17, 1993
  

CATEGORY:  Restricted Property

Regional Commissioner of Customs
c/o Protest and Control Section
6 World Trade Center  Room 761
New York, New York 10048-0945

RE:   Application for further review of protest; exclusion from
consumption entry of an importation of certain long range
cordless telephones 

Dear Sir:

     This is in response to the above mentioned protest.  We have
reviewed all relevant information and our response follows.

FACTS:

     PROTESTANT is an importer of long range cordless telephones. 
The protest states that the merchandise can properly be entered
for consumption because it complies with the applicable rules and
regulations of the Federal Communications Commission (FCC).  The
protest also states that the merchandise, in its condition as
imported, is incapable of causing harmful interference to radio
communications in the United States.

ISSUE:

     Whether the cordless telephones were properly excluded from
entry for consumption.

LAW AND ANALYSIS:

     There has apparently been some confusion as to the FCC's
treatment of radio frequency devices which are entered for export
only, such as the long range cordless telephones here at issue. 
As the result of a long standing practice PROTESTANT has been
allowed to use a consumption entry for goods which are intended
for export only.  It recently came to the attention of the U.S.
Customs Service that this practice prevents effective monitoring
of the exportation of the devices.  It is the opinion of Customs
that items intended for export only should be entered into a
Foreign Trade Zone (FTZ) or bonded warehouse.
                         - 2 -


     Title 19, United States Code, section 3109(b), provides that
any product of a foreign country that is subject to approval or
registration may be entered only if the product conforms to FCC
rules and regulations and the information required on form 740 is
provided to Customs at the time of such entry in such form and
manner as the Secretary of the Treasury may prescribe.

      PROTESTANT states that the importation here in question
does comply with the FCC requirements.  The record indicates that
the issue of compliance has been raised with the FCC.  It is
within the authority of the FCC to determine whether a product
conforms to the rules and regulations of the FCC.  We have
received information that the FCC has not yet ruled on the issue
of conformity of the items here in question.

     The record indicates that the PROTESTANT was informed by a
letter from the FCC, dated June 25, 1992, that under no
circumstances would it be permitted to deliver cordless
telephones that do not meet the FCC's technical requirements and
certification to any customer in the United States, including
dealers or distributors.  The letter further states that the
physical transfer of any sales in the United States of such
articles must take place in a foreign trade zone or bonded
warehouse or by an arrangement acceptable under Customs statutes
and regulations.  In a letter from the FCC dated October 6, 1992,
the requirements and provisions of the June 25, 1992, letter were
"held in abeyance" pending final action on a petition the
PROTESTANT filed with the FCC.  

     In a letter dated October 21, 1993, the FCC informed Customs
that current FCC regulations do not require the use of a foreign
trade zone or bonded warehouse for the importation of devices
intended for export, even when the devices are not in compliance
with the requirements set for devices to be used in the United
States.  The letter further indicated that the FCC was aware that
entry for exportation can only be properly monitored by Customs
if such entry is into a foreign trade zone or bonded warehouse.  

HOLDING:

     In light of the FCC's opinion that its regulations do not
require the use of a FTZ or bonded warehouse, the protest should
be granted.    

     You are hereby instructed to grant the protest in full. 
Please provide a copy of this ruling and CF 19, Notice of Action,
to PROTESTANT.

                         - 3 -



     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 the mailing of the decision.  Sixty
days from the date of this decision the Office of Regulations and
Rulings will take steps to make the decision available to customs
personnel via the Customs Rulings Module and to the public via
the Diskette Subscription Service, Lexis, Freedom of Information
Act and other public access channels.  

 
                         Sincerely,



                         Stuart P. Seidel
                         Director, International
                         Trade Compliance Division