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