PRO-2-02/LIQ-9-02/BON-2-CO:R:C:E 224712 PH

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

RE: Protest No. 1001-93-100413; Notice of Redelivery; Timeliness; 19 CFR 141.113(b); 19 U.S.C. 1514 Dear Sir:

The above-referenced protest was forwarded to this office for further review. We have considered the evidence provided, and the points raised, by your office and the protestant. Our decision follows.

FACTS:

According to the file, on July 18, 1992, the protestant imported the merchandise under consideration, 800 dozen woman's jeans from the People's Republic of China. Duty was paid and immediate delivery was authorized on July 23, 1992. The merchandise was subject to quota and a visa was provided to Customs.

By communication dated December 21, 1992, the Embassy of the People's Republic of China advised Customs that the visa for the merchandise under consideration was counterfeit. On December 23, 1992, Customs issued a Notice of Redelivery (Customs Form 4647) to the protestant on the basis of the report of the counterfeit visa. According to Customs records, the entry has not yet been liquidated.

On January 21, 1993, the protestant filed the protest under consideration. The protestant applied for further review. According the protest, because the Notice to Redeliver was issued 5 months after the merchandise was entered, the goods had long since been released by Customs and distributed by the protestant to its various customers, making redelivery impossible. In its protest, the protestant states that it was unaware at the time of importation of any impropriety as to the visa. Even assuming, arguendo, that the visa was counterfeit, the protestant argues that the Demand for Redelivery was not issued "promptly," citing 19 CFR 141.113(b), and therefore should be cancelled.

ISSUE:

Was the Notice of Redelivery timely in this case?

LAW AND ANALYSIS:

Initially, we note that the protest, with application for further review, was timely filed under the statutory and regulatory provisions for protests (see 19 U.S.C. 1514 and 19 CFR Part 174). We also note that the decision to issue a Notice of Redelivery is protestable under the Customs protest statute (see 19 U.S.C. 1514(a)(4)).

The Customs Regulations governing this issue are found in 19 CFR 141.113 and 113.62. Under paragraph (b) of section 141.113:

If at any time after entry the district director finds that any merchandise contained in an importation is not entitled to admission into the commerce of the United States for any reason not enumerated in paragraph (a) of this section [relating to various marking and labeling requirements], he shall promptly demand the return to Customs custody of any such merchandise which has been released.

Paragraph (f) of section 141.113 contains a time limitation for demands for the return of merchandise to Customs custody under section 141.113. Under this provision:

A demand for the return of merchandise to Customs custody shall not be made after the liquidation of the entry covering such merchandise shall become final.

Section 113.62 contains the basic importation and entry bond conditions. Under paragraph (c) of this provision:

It is understood 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).

Recently, the interpretation of these provisions has been thoroughly considered (see rulings 088880, dated March 19, 1992; 223538, dated October 1, 1992; and 224566 and 951300, both dated August 3, 1993). Customs position now is that a Notice of Redelivery must be "promptly" issued (see Customs Service Decisions (C.S.D.'s) 90-99, 89-100, and 86-21). (Copies of the cited rulings and C.S.D.'s are enclosed for your information.) It is Customs position that 19 CFR 141.113(b) has a time limitation of "promptness" (i.e., 30 days), despite the broad drafting language of the regulation itself (i.e., "[i]f at any time after entry ..."). It is Customs position that a Notice of Redelivery is not timely when it is issued more than 30 days after release of the merchandise by Customs and no Request for Information (Customs Form 28) is issued or any other action is taken to establish a different conditional release period.

In this case, the Notice of Redelivery was not issued until more than 30 days after entry and release of the merchandise (release under immediate delivery procedures was authorized on July 23, 1992, and entry was on July 24, 1992). There was no action taken to establish a different conditional release period. Therefore, the protest against the Notice of Redelivery for this entry must be granted.

HOLDING:

The Notice of Redelivery was not timely in this case.

The protest is GRANTED. A copy of this decision should be attached to the Form 19 and provided to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director
Commercial Rulings Division