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HQ 116345

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November 4, 2004

ENT-1-07-RR:IT:EC 116345 GOB

CATEGORY: ENTRY

Port Director
Customs and Border Protection
4341 International Partway
Suite 600
Atlanta, GA 30354

RE: Protest 1704-04-100192; Notice to Redeliver; Gas Scooters

Dear Port Director:

This letter is in reference to Protest 1704-04-100192, filed on behalf of Y&B Brothers Enterprises (“protestant”), which was forwarded by your office to this office for our review.

FACTS:

The file and information from your office reflect the following. The protestant entered certain gas scooters under cover of three entries filed on July 9, 2004. On August 4, 2004, Customs and Border Protection (“CBP”) issued a redelivery notice (“Notice to Mark and/or Notice to Redeliver”) with respect to each of the entries. The redelivery notices stated that the “[s]cooters are in violation of Department of Transportation (DOT) regulations.” The subject protest was filed on August 26, 2004.

The gas scooters at issue are styles 049LX-C and FS-509. They are described as :

Having functional lighting equipment, 49 cc engines, speedometers that are capable of registering vehicle speeds up to 60 miles per hour, and tires and rims that lack DOT markings. . . . [They] have been assigned portions of vehicle identification numbers or “VINs,” but . . . they lack DOT certification labels.

ISSUES:

Whether the redelivery notices were correctly and appropriately issued? Whether the gas scooters are “motor vehicles” within the meaning of title 49, United States Code, section 30102(a)(6)? If so, whether the scooters were entered in compliance with DOT and NHTSA standards.

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. 19 U.S.C. 1514(c)(3) and 19 CFR 174.12(e). We also note that the decision to issue a Notice of Redelivery is protestable pursuant to 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 (c) of section 141.113:

If at any time after entry the port 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) or (b) 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.

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

If merchandise is released conditionally from Customs custody to the principal before all required evidence is produced, before its quantity and value are determined, or before its right of admission into the United States is determined, the principal agrees to redeliver timely, on demand by Customs, the merchandise released if it:

Fails to comply with the laws or regulations governing admission into the United States; . . .

Title 49, United States Code, section 30102(a)(6) (49 U.S.C. 30102(a)(6)) provides:

“motor vehicle” means a vehicle driven or drawn by mechanical power and manufactured primarily for use on public streets, roads, and highways, but does not include a vehicle operated only on a rail line.

In a letter dated August 31, 2004 to CBP, the National Highway Traffic Safety Administration (“NHTSA”) of the Department of Transportation (“DOT”) stated:

Based on the information you have provided, and on information we have received from the Internet site of Zhejiang Feishen Vehicle Co., Ltd. (Feishen), which we believe is the motorcycle manufacturing branch of Buyang, we are satisfied that these motorcycles qualify as “motor vehicles” that must be originally manufactured to comply with all applicable Federal motor vehicle safety standards (FMVSS), and bear labels certifying such compliance that have been permanently affixed by their original manufacturer, in order to be lawfully imported into the United States. Moreover, the manufacturer must identify itself to this agency as a manufacturer of motor vehicles that are subject to our standards (as required by the agency’s regulations at 49 CFR part 566), furnish us with information we would need to decipher the VINs it must assign to all motor vehicles manufactured for sale in the United States (as required by 49 CFR 565), and designate a U.S. resident as its agent for service of process (as required by 49 CFR 551.45).

You state that none of the motorcycles included in the shipment have certification labels. That alone provides a basis for denying entry to the vehicles. Motor vehicles that are imported without such labels are in violation of 49 U.S.C. § 30112(a) . . .

The file indicates that it is NHTSA’s policy to regulate goods such as the subject gas scooters as motor vehicles if they are capable of a top speed above 20 miles per hour and are equipped with components that are needed for on-road operation. The file further indicates that the subject gas scooters have a potential top speed of over twenty miles per hour and have certain components indicative of on-road operation.

The protestant claims that the gas scooters are not “motor vehicles” within the meaning of 49 U.S.C. 30112(a)(6) because they are not designed for use on public roads. It claims that “the redelivery demand is improper when it involves merchandise over which the NHTSA never has asserted authority.” In light of the very clear guidance and findings provided to CBP by DOT and NHTSA, we find these claims to be without merit.

After a consideration of this matter, we find that the subject gas scooters are “motor vehicles” within the meaning of 49 U.S.C. 30112(a)(6). As such, they were entered without compliance with the applicable DOT and NHTSA standards. We therefore find that the three redelivery notices were correctly and appropriately issued.

HOLDING:

The subject gas scooters are “motor vehicles” within the meaning of 49 U.S.C. 30112(a)(6). They were entered without compliance with the applicable DOT and NHTSA standards. The three redelivery notices were correctly and appropriately issued.

You are instructed to DENY the protest.

In accordance with the Protest/Petition Processing Handbook (IS HBO, January 2002, pp. 18 and 21), you are to mail this decision, together with the Customs Form 19, 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 make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Glen E. Vereb
Chief

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