HQ 967164

July 13, 2004

CLA-2: RR:CR:TE 967164 KSH

CATEGORY: Classification

TARIFF NO.: 6204.52.2070; 6104.62.2011; 6104.52.0010

Area Director

# JFK International Airport Area

C/O Chief, Liquidation and Protest Branch

Building 77

JFK International Airport

Jamaica, New York 11430

RE: Application for Further Review of Protest 4701-03-101630

Dear Area Director:\
\
This is in reply to your correspondence, dated March 22, 2004,
forwarding Application for Further Review of Protest (AFR)
4701-03-101630, filed by Hodgson Russ LLP, on behalf of Nevada Apparels
Corp.

FACTS:\
\
The protest is against Customs and Border Protection's (CBP) demand for
redelivery of merchandise.

On May 7, 2003, protestant entered 60 cartons of women's skirts and
trousers claimed to be country of origin Vietnam. In August, 2003, a
Textile Production Verification Team conducted visits to Vietnam to
verify country of origin claims. On October 29, 2003, CBP issued a
notice to redeliver the merchandise within 30 days based upon
information that the merchandise in the shipment was not made in
Vietnam. On December 12, 2003, CBP issued a notice of penalty or
liquidated damages incurred and demand for payment based on protestant's
failure to redeliver the merchandise and failing to adequately mark the
merchandise with the country of origin. On December 23, 2003, protestant
filed the instant protest and application for further review (AFR)
protesting the demand for redelivery. Protestant's AFR request was
approved. The protest was timely filed pursuant to 19 U.S.C. 1514 (c)(3)
and 19 C.F.R. 174.12 (e)(1).

In support of protestant's application for further review, protestant
alleges that although CBP has ruled on the propriety of a Notice of
Redelivery of wearing apparel that is more than 30 days after the entry
and release of merchandise it has yet to rule on whether in the absence
of a request for additional information or having knowledge at the time
of entry which it failed to advise the importer of regarding the
manufacturer at the time of entry, notice to redeliver is proper.
Further review is warranted pursuant to 19 CFR §§174.24(c) and 174.25.

ISSUE:\
\
Whether the issuance of the redelivery notice was proper.\
\
LAW AND ANALYSIS:\
\
The Customs Regulations governing the recall of textiles and textile
products released from CBP custody are found in 19 C.F.R. §141.113.
Paragraph (b) of section 141.113 provides as follows:\
\
For purposes of determining whether the country of origin of textiles
and

> textile products subject to the provisions of §12.130 of this chapter
> has been accurately represented to Customs, the release from Customs
> custody of any such textile or textile product shall be deemed
> conditional during the 180-day period following the date of release.
> If the port director finds during the conditional release period that
> a textile or textile product is not entitled to admission into the
> commerce of the United States because the country of origin of the
> textile or textile product was not accurately represented to Customs,
> he shall promptly demand its return to Customs custody.
> Notwithstanding the provision of paragraph (h) of this section and
> §113.62(l)(1) of this chapter, a failure to comply with a demand for
> return to Customs custody made under this paragraph shall result in
> the assessment of liquidated damages equal to the value of the
> merchandise involved.

The background information on section 141.113(b), published in T.D.
94-95, Customs Bulletin, Vol. 28, No. 50, December 14, 1994, makes clear
that the regulation was adopted because of a significant enforcement
problem regarding textiles and textile products that are imported into
the United States in violation of quota restrictions or without the
appropriate visa from the country of origin. Prior to the enactment of
section 141.113, CBP was required to issue a Notice of Redelivery within
30 days of the release of the merchandise from CBP's custody. See [HQ
226089](../detail.asp%3Fru=226089), dated February 9, 1996. However,
most violations were not

discovered until after the close of the time period for issuance of a
Notice of Redelivery. See [HQ 226089](../detail.asp%3Fru=226089) (cited
above) and T.D. 94-95 (cited above). Accordingly, the 180-day
conditional release period was specifically implemented to provide CBP
with an opportunity to verify that country of origin claims are
"accurately" represented to CBP.

> The instant case falls squarely within the purview of 19 C.F.R.

§141.113(b). The protestant claimed Vietnam as the country of origin
but, after release of the merchandise, CBP discovered that the claimed
country of origin was incorrect and demanded redelivery. The 180-day
regulatory conditional release period commenced on the date the
merchandise was released from CBP custody. CBP issued the Notice to
Redeliver on October 29, 2003, well within the 180-day conditional
release period. Accordingly, CBP's demand for redelivery of the
merchandise was proper.\
\
In [HQ 960409](../detail.asp%3Fru=960409), dated October 24, 1997, CBP
dealt with a similar protest against demands for redelivery of shipments
of women's wearing apparel. The Notice to Redeliver was made within the
180 day conditional release period. The ruling cited 19 C.F.R. §114.113
and stated:\
\
The plain language of the above referenced regulation is clear on its
face.

> The issue at hand addresses the country of origin of the subject
> merchandise and the manufacturing processes which occur in the claimed
> country of origin. In the case of the subject wearing apparel Customs
> had reason to believe that the claimed country of origin was
> incorrect. Thus, as explicitly stated in the regulation, Customs was
> well within its legal right to act upon the conditional release period
> mandated by the regulation.

Similarly, in the instant case, CBP was well within its legal right to
act upon the conditional release period and demand redelivery.\
\
Protestant argues that the request for redelivery made after the
merchandise was released was unfair. Protestant also argues that because
CBP did not request additional information to establish country of
origin, CBP should have notified protestant that the country of origin
of the merchandise was not Vietnam at the time of entry so that the
protestant could have redelivered the merchandise or presented evidence
that the merchandise was made in Vietnam. We understand Protestant's
contention that requesting the documents after the release of
merchandise put them in a difficult situation. However, 19 C.F.R.
§141.113 puts an importer of textile products on notice that any release
of merchandise is conditional and that the merchandise may be subject to
additional scrutiny and possible redelivery for 180 days after release.

19 C.F.R. §12.130, states that a port director may request additional
information if he is unable to determine the country of origin. However,
there is no requirement that a request for additional information be
made before demanding redelivery nor is there any requirement that CBP
notify an importer at the time of entry that the claimed country of
origin is incorrect. In the instant case, a Textile Production
Verification Team visited Vietnam after entry of the merchandise was
made. It clearly would have been impossible for CBP to notify protestant
at the time of entry that the country of origin of the merchandise was
not Vietnam. Moreover, based on the information obtained by CBP during
its visit to Vietnam, the port director found, during the conditional
release period, that the merchandise was not entitled to admission into
the commerce of the United States because the country of origin of the
textile or textile product was not accurately represented and properly
demanded its return to CBP's custody. There was sufficient evidence
supporting a false claim of country of origin such that it was not
necessary to request additional information from the protestant.
Protestant was given the opportunity to redeliver the merchandise within
30 days of the notice but failed to do so.

HOLDING:

The protest and application for further review should be denied in full.

In accordance with the Protest/Petition Processing Handbook, (CIS HB,
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 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,
>
> Myles B. Harmon, Director

## Commercial Rulings Division