HQ 224584JS - Application for Further Review of Protest No. 1001-93-100352; Timeliness of Notice of Redelivery; Counterfeit visa - United States International Trade Commision Rulings

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HQ 224584

July 6, 1994

PRO-2-02/BON-2-CO:R:C:E 224584 JRS

CATEGORY: PROTEST

Regional Commissioner of Customs c/o Protest and Control Section 6 World Trade Center, Room 762 New York, New York 10048-0945

RE: Application for Further Review of Protest No. 1001-93-100352; Timeliness of Notice of Redelivery; Counterfeit visa

Dear Sir:

The above-referenced protest was forwarded to our office for further review. Our decision follows.

FACTS:

On April 19, 1992, the protestant imported from Hong Kong 3,600 dozen infants' 100% spun polyester knitted two-piece sets manufactured in the Guangdong Province of the People's Republic of China. On June 2, 1992, with an export license and visa secured by the foreign seller, the protestant entered the goods.

On December 22, 1992, Customs issued a Notice of Redelivery (CF 4647) citing a violation of the Quota/Visa - Bilateral Textile Agreement between the United States and the People's Republic of China (PRC). The CF 4647 stated that visa was reported by the Embassy of the PRC (on December 21, 1992) to be counterfeit, and thus, ordered redelivery of the merchandise within 30 days. Redelivery has not been accomplished because by the time the notice was issued, more than six months after the release of the goods, the infant sets (highly seasonal merchandise) had already been distributed to the protestant's customers.

The protestant filed the instant protest, requesting further review, against the untimeliness of the Notice of Redelivery and the fact that at the time~of entry it had no reason to believe that the visa was invalid as it was in no way irregular on its face and that nothing had been recently issued by Customs or CITA indicating that such a visa might be counterfeit. The entry at issue has not been liquidated.

ISSUE:

Whether notices of redelivery (for merchandise not entitled to admission) may be enforced when issued six months after entry.

LAW AND ANALYSIS:

The decision to issue a notice of redelivery is Protestable under 19 U.S.C. 1514(a)(4) and, that the protest and the application for further review was timely filed on January 19, 1993, within ninety-days of the issuance of the Notice of Redelivery on December 22, 1992. See 19 U.S.C. 1514 and 19 CFR Part 174. We note that the Protestant did not request immediate action under 19 CFR 174.21(b).

Customs may demand the return of inadmissible goods that has been released from Customs custody, however, such a demand must be made within the time limitations provided for in the Customs regulations. Section 141,113(b) of the Customs Regulations (19 CFR 141,113(b)) provides:

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 marking of certain merchandise], he shall promptly demand the return to Customs custody of any such merchandise which has been released (emphasis added).

Section 141,113(f) of the Customs Regulations (19 CFR 141,113(f)) states the time limitation for demands for the return of merchandise:

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

Additionally, there are only two periods during which a redelivery notice may be issued and enforced by a Customs bond under the Customs Regulations. Section 113.62 of the Customs Regulations contains the basic importation and entry bond conditions, namely, 19 CFR 113.62(d) provides:

It is understood that any demand for redelivery will be made no longer 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).

We have interpreted these provisions in ruling HQ 088880 RFC, dated March 19, 1~992. See HQ 223538 SLR, dated October 1, 1992. In HQ 088880, we held that a notice of redelivery must be "promptly" issued, that is, it must be issued either: (1) no later than 30 days after the date the merchandise is released if there is no occurrence establishing a conditional release period; or (2) if there is an occurrence establishing a conditional release period (e.g., see 19 CFR 12.80(e)(2), 19 CFR 134.3, and 19 CFR 151.11), no later than 30 days after the end of that period [e.g., if information or a sample is requested, within 30 days from the date of receipt by Customs of the information or sample] (see Customs Service Decision (C.S.D.) 86-21). A notice of redelivery may never be issued after liquidation becomes final (United States v. Utex International Inc., 6 Fed. Cir. (T) 166 (1988)).

In this case, the entry has not yet been liquidated so the issue of admissibility is not final. Although Customs issued the notice of redelivery on December 22, 1992, one day after it discovered that the visa was counterfeit from the Commercial Office of the Chinese Embassy, it was well-beyond the 30-day time limit of 19 CFR 113.62(d). The notice of redelivery was issued more than six months after the entry and release of the goods from Customs custody and Customs had taken no action within 30 days of entry to establish a different conditional release period (e.g., a Request for Information (CF 28)). It is clear from the file that Customs believed the visa at issue to be valid at the time of entry and therefore released the goods. The notice of redelivery, therefore, was not "promptly" issued in accordance with the regulatory requirements of 19 CFR 113.62(d) and 19 CFR 141.113(b). Accordingly, this protest must be granted.

Inasmuch as there exists the possibility of a penalty action under 19 U.S.C. 1592 for the importer's failure to comply with the laws governing admission of goods into the United States, we will not address the merits concerning the counterfeit visa as it is premature at this point.

HOLDING:

The notice of redelivery was untimely since it was issued more than 30 days after release of the merchandise and no conditional release period was established and, as such, it must be cancelled.

You are directed to allow the protest under consideration. A copy of this decisio~n should be attached to Customs Form 19, Notice of Action, and sent to the protestant.

Sincerely,

John Durant, Director

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