B-148461, APR. 6, 1962

B-148461, APR. 6, 1962

TO MR. RAYMOND S. YAUKEY:

YOUR LETTER OF MARCH 12, 1962, REQUESTS RECONSIDERATION OF OUR OFFICE SETTLEMENT OF MARCH 8, 1962, DISALLOWING YOUR CLAIM FOR $15 REPRESENTING ENTRY CHARGES (OTHER THAN DUTY) ON A SHIPMENT OF ALCOHOLIC BEVERAGES PAID BY YOU TO A FREIGHT FORWARDER INCIDENT TO YOUR TRAVEL FROM GENEVA, SWITZERLAND, TO BETHESDA, MARYLAND.

YOU CONTEND THAT ARRANGEMENTS FOR THE SHIPMENT WERE MADE PRIOR TO AUGUST 31, 1961 (DATE OF YOUR DEPARTURE), WHEN THE SHIPMENT OF SUCH GOODS WAS SUBJECT TO DEPARTMENT OF STATE INSTRUCTION NO. CA 7677, DATED MARCH 13, 1961, WHICH PROVIDES THAT ALCOHOLIC BEVERAGES IN EXCESS OF ONE WINE GALLON PER PERSON SHALL BE FORWARDED THROUGH COMMERCIAL CHANNELS AND NOT IN CARE OF DESPATCH AGENTS. YOU SAY YOU HAVE LEARNED THAT SUCH INSTRUCTION WAS LATER RESCINDED BY DEPARTMENT OF STATE INSTRUCTION NO. CW 3127, DATED SEPTEMBER 17, 1961, BUT ALLEGE THAT THE PRIOR INSTRUCTION APPLIED IN YOUR CASE. YOU FEEL THAT SINCE THE INSTRUCTION OF MARCH 13, 1961, REQUIRED YOU TO FORWARD THE BEVERAGES THROUGH COMMERCIAL CHANNELS YOU ARE ENTITLED TO BE REIMBURSED FOR THE PAYMENT OF $15 FOR ARRANGING AND PASSING THROUGH CUSTOMS IN BALTIMORE.

DEPARTMENT OF STATE INSTRUCTION NO. CA 7677, DATED MARCH 13, 1961, READS IN PERTINENT PART AS FOLLOWS:

"SECTION 19 CFR 54:2 (C) (SEE 1 FSM III 156.21) PROVIDES FOR IMPORTATION FREE OF DUTY OF ONE WINE GALLON OF ALCOHOLIC BEVERAGES FOR EACH TRAVELER. ALL PERSONNEL ARE HEREBY NOTIFIED THAT HENCEFORTH ALCOHOLIC BEVERAGES IN EXCESS OF ONE WINE GALLON PER TRAVELER ARE NOT TO BE COMBINED WITH HOUSEHOLD EFFECTS FOR SHIPMENT AGAINST TRAVEL ORDERS.

"ALCOHOLIC BEVERAGES IN EXCESS OF ONE WINE GALLON PER PERSON SHALL BE FORWARDED THROUGH COMMERCIAL CHANNELS AND NOT IN CARE OF DESPATCH AGENCIES. OWNERS WILL BE RESPONSIBLE FOR CLEARANCE AND PAYMENT OF IMPORT DUTIES AS WELL AS FEDERAL AND STATE TAXES TO THE CUSTOMS AUTHORITIES WITHOUT THE ASSISTANCE OF DESPATCH AGENCIES.'

WE INFORMALLY HAVE ASCERTAINED FROM THE DEPARTMENT OF STATE THAT THE ABOVE-QUOTED INSTRUCTION IS STILL IN EFFECT AND WAS NOT CANCELLED BY INSTRUCTION NO. CW 3127, DATED SEPTEMBER 17, 1961. THE PURPOSE OF THE LATTER INSTRUCTION WAS MERELY TO REMOVE THE RESTRICTION ON THE AMOUNT OF ALCOHOLIC BEVERAGES WHICH COULD BE INCLUDED AS A PART OF EFFECTS FOR SHIPMENT AT GOVERNMENT EXPENSE (2 PERCENT OF THE AUTHORIZED MAXIMUM WEIGHT ALLOWANCE OR 1 PERCENT OF THE AUTHORIZED MAXIMUM ALLOWANCE BY VOLUME).

APPARENTLY, ONE OF THE PURPOSES OF INSTRUCTION NO. CA 7677, DATED MARCH 13, 1961, IS TO RELIEVE DESPATCH AGENCIES OF COMPLICATIONS ORDINARILY RESULTING FROM AN EMPLOYEE INCLUDING IN HIS SHIPMENT OF EFFECTS BACK TO THE UNITED STATES MORE THAN ONE WINE GALLON OF ALCOHOLIC BEVERAGES PER PERSON. TO ACCOMPLISH SUCH PURPOSE THE INSTRUCTION REQUIRES THAT ALCOHOLIC BEVERAGES IN EXCESS OF ONE WINE GALLON PER PERSON BE FORWARDED THROUGH COMMERCIAL CHANNELS. HOWEVER, THE INSTRUCTION SAYS NOTHING ABOUT REIMBURSING AN EMPLOYEE FOR ANY ADDITIONAL COST INVOLVED BY REASON OF ENTRY OF THE ALCOHOLIC BEVERAGES THROUGH COMMERCIAL CHANNELS AND WE DO NOT BELIEVE SUCH WAS THE INTENT. ON THE CONTRARY, OUR VIEW IS THAT THE INSTRUCTION INTENDED THAT ANY EXCESS COST BY REASON OF AN EMPLOYEE BRINGING INTO THE UNITED STATES MORE ALCOHOLIC BEVERAGES THAN PERMITTED BY LAW WITHOUT PAYMENT OF DUTY WOULD BE A PERSONAL EXPENSE TO BE BORNE BY SUCH EMPLOYEE.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM BY OUR SETTLEMENT OF MARCH 8, 1962, MUST BE SUSTAINED.