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HQ 224926

January 31, 1994

BON-2/ENT-1-07 CO:R:C:E 224926 TLS

CATEGORY: ENTRY

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

RE: Further review of protest #1001-93-104112 concerning the redelivery of merchandise under 19 CFR 141.113(b) and (f); C.S.D. 85-22 (September 19, 1984); C.S.D. 90-99 (June 28, 1990); C.S.D. 86-21 (May 16, 1986); HQ 223315 (Sept. 4, 1991), HQ 222826 (March 7, 1991).

Dear Sir:

This office has received the request for further review of the above-referenced protest as provided for under Customs regulations. We have considered the request and have made the following decision.

FACTS:

On July 15, 1992, 1402 dozen girls' 100% cotton woven pants were entered for consumption through New York Customs. The goods were exported from the People's Republic of China (China) and required a quota visa for importation into the United States. The New York port received notification from Customs Headquarters on April 20, 1993 that the visa accompanying the subject entry was counterfeit. On April 22, 1993, Customs issued a notice of redelivery to the importer demanding redelivery of the merchandise.

The protestant contends that the notice is untimely because it came nine months after the entry was made. The importer claims that the notice is also insufficient because it does not establish that the visa was counterfeit. Your office maintains that the notice was timely issued in accordance with Customs regulations.

ISSUES:

Whether the notice of redelivery in this case was timely issued.

Whether the notice of redelivery must establish the validity of a determination to demand redelivery.

LAW AND ANALYSIS:

As noted above, the Notice to Redeliver was issued on April 22, 1993. The importer timely filed this protest of the notice on June 23, 1993.

According to the Bilateral Trade Agreement between the United States and China, textile merchandise manufactured in China must have a visa issued upon it to be imported into the United States. The visa must be issued by the Chinese government. Section 141.113(b) of the Customs regulations authorizes Customs District Directors to demand redelivery of any merchandise found not to be admissible into the United States subsequent to its release from Customs custody.

In this case, the Chinese government notified the Customs Service that the visa accompanying the entry in question was not issued by their government. To the extent that the Chinese government disavowed responsibility for issuing the visa, Customs made the determination that it was not valid, thereby making the merchandise imported pursuant to it inadmissible to the commerce of this country.

The protestant argues that the notice is invalid because it does not establish that the visa was counterfeit. The issue of sufficiency of notice to redeliver was addressed before as well. It has been ruled that a proper notice in demand for redelivery of textile products need only show the entry number, entry date, a description of the merchandise, and the reason for redelivery. C.S.D. 85-22 (September 19, 1984). The ruling concluded that Customs need not prove on the notice the validity of its determation to demand redelivery. In the present case, the notice to redeliver shows the entry number, entry date, and a description of the merchandise clearly marked on its face in designated boxes. The notice also provides comments explaining the reason for the redelivery. Thus, Customs has provided all the information it is required to furnish on the notice.

The notice to redeliver was issued pursuant to 19 CFR 141.113(b), which allows for such when merchandise is found inadmissible "for any reason not enumerated in [19 CFR 141.113(a)]." The protestant argues that section 141.113(a) requires that notice be given within 30 days of the date of entry, section 141.113(b) requires prompt notification by implication. The issue of promptness of notices to redeliver has been addressed before. It has been ruled that notices of redelivery are timely if made within 30 days after release of merchandise or some other date establised by regulation or notice. See C.S.D. 90-99 (June 28, 1990), C.S.D. 86-21 (May 16, 1986); see also HQ 223315 (Sept. 4, 1991), HQ 222826 (March 7, 1991). These decisions consistently conclude that notices of redelivery must be issued before the liquidation of the entry is final.

In the present case, the notice was issued before liquidation, but more than 30 days after the date of entry. The notice did not set forth a time period longer than that already provided for under Part 141.113(b) of the Customs regulations. Special circumstances might allow Customs to extend such a period, but none are evident in this case. See C.S.D. 90-99, supra. Therefore, we are compelled to find that Customs did not timely issue the notice to redeliver in this case.

HOLDING:

Customs failed to timely issue the Notice to Redeliver in this case pursuant to 19 CFR 141.113(b). This protest is hereby GRANTED.

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

Sincerely,

John Durant, Director

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