BON-2/PRO-2-02/ENT-1-07-RR:IT:EC 226089 AJS
CMC Director of Customs
U.S. Customs Service
c/o Residual Liquidation and Protest Branch
6 World Trade Center, Room 761
New York, NY 10048-0945
RE: Protest 1001-94-102956; Notice of Redelivery; 19 CFR 141.113;
19 CFR 113.62; HQ 224854; HQ 951300; T.D. 94-95.
Dear Sir or Madame:
This is our decision in protest 1001-94-102956, dated April
26, 1994, concerning a demand for redelivery of cotton pants from
Mongolia.
FACTS:
The subject entry was entered and released on December 21,
1993. At the time of entry, the country of origin of the
merchandise was claimed to be Mongolia and thus a textile visa
was not required. The protestant claims Customs did not request
a sample of the merchandise from the subject entry. There is no
information in the file indicating that Customs requested a
sample or took any other action regarding the subject entry. On
March 17, 1994, Customs issued a Customs Form 4647, Notice to
Mark and/or Notice to Redeliver, stating that the merchandise
must be brought into compliance as specified. Specifically, the
correct country of origin for the subject merchandise was China
and a corrected country of origin textile document and an export
visa issued by the Chinese Government were required. In
addition, the merchandise was required to be redelivered to
Customs custody within 30 days from the date of this notice.
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ISSUE:
Whether the subject Notice of Redelivery was timely issued
within the meaning of 19 CFR 113.62(d).
LAW AND ANALYSIS:
Initially, we note that the subject protest was timely filed
pursuant to 19 U.S.C. 1514(c)(2)(B). The date of decision as to
which protest is made was March 17, 1994, and the date of this
protest is April 26, 1994. We also note that a demand for
redelivery is protestable pursuant to 19 U.S.C. 1514(a)(4).
The Customs Regulations governing the above-stated issue are
found in 19 CFR 141.113 and 113.62. Paragraph (b) of section
141.113 provides as follows:
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 113.62 of the Customs Regulations (19 CFR 113.62)
contains the basic importation and entry bond conditions.
Paragraph (d) of this provision provides as follows:
If merchandise is released conditionally from Customs
custody to the principal 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:
(1) Fails to comply with the laws or regulations governing
admission into the United States; . . .
It is understood that any demands 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).
Paragraph (e) of this provision also provides as follows:
If merchandise is released conditionally to the principal
before its right of admission into the United States is
determined, the principal, after notification, agrees to . . . do
any other thing to the merchandise in order to comply with
the law and regulations governing its admission into the United
States within the time period set forth in the notification.
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The interpretation of these provisions has been thoroughly
considered (see e.g., HQ 224854 of July 6, 1994; HQ 224872 of
July 5, 1994). Customs is of the position that a Notice of
Redelivery must be "promptly" issued. "Promptly" means either:
(1) no later than 30 days after
the date the merchandise is released if there is no occurrence
establishing a different conditional release period: or (2) if
there is an occurrence establishing a different conditional
release period (e.g., 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] (HQ 951300 of October 7, 1992; HQ
223535 of September 21, 1992; and HQ 088904 of February 19,
1992). 19 CFR 141.0a(i) states that released conditionally means
any release from Custom Custody before liquidation. 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 instance, the date of release for the subject
merchandise was December 21, 1993. Based on the above paragraph,
Customs was required to issue a Notice of Redelivery no later
than 30 days after this date unless there was an occurrence
establishing a different conditional release period. There is no
evidence in the case file which indicates that there was any such
occurrence. The subject Notice of Redelivery was issued on March
17, 1994. Therefore, this Notice was not issued promptly within
30 days after the date of release as required. Accordingly, the
subject Notice of Redelivery was not timely issued.
We note that in Treasury Decision (T.D.) 94-95, Customs
amended the Customs Regulations to establish a conditional
release period of 180 days on entries of textiles and textile
products for the sole purpose of facilitating a determination as
to whether the country of origin of the entered goods has been
accurately represented to Customs. This amendment will permit
Customs to issue Notices of Redelivery to importers of textiles
and textile products within 30 days after the end of the
conditional release if investigation or information reveals that
the merchandise was claimed to originate in a country where
little or no manufacturing process occurred in order to avoid
quota or visa admissibility requirements. The effective date of
this amendment was January 3, 1995. Thus, this amendment is
inapplicable to the subject entry which was entered on December
21, 1993.
HOLDING:
The protest is granted. The Notice of Redelivery was
untimely issued within the meaning of 19 CFR 113.62(d).
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, 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 the
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making of this 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, Freedom of Information Act and other public
access channels.
Sincerely,
Director,
International Trade Compliance Division