HQ 221017: 19 U.S.C. 1514; final liquidation; post-liquidationredelivery notice invalid; protest no. 1001-8-007981

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 221017

                        November 19, 1990

PRO-2-02 CO:R:C:E 221017 C

CATEGORY:  Entry/Liquidation

District Director of Customs
U.S. Customs Service
New York Seaport Area
Customhouse, 6 World Trade Center
New York, New York 10048

RE:  19 U.S.C. 1514; final liquidation; post-liquidation
redelivery notice invalid; protest no. 1001-8-007981

Dear Sir:

     This responds to the referenced protest, approved for
further review on October 24, 1988.  Based on the scanty
information provided, we understand the facts as follows:
Protestant filed a consumption entry for imported cheese.  The
entry was liquidated on May 6, 1988.  Subsequently, a notice of
refusal of admission was issued on June 27, 1988, by the Food and
Drug Administration (FDA), and a notice of redelivery was issued
on July 6, 1988, by Customs.

     Since protestant filed this protest within 90 days of the
issuance of the redelivery notice, and since that is the Customs
decision against which protestant lodges its protest, the protest
was timely filed in accordance with 19 U.S.C. 1514(c)(2)(B).

     Protestant argues that the redelivery notice is invalid and
should be cancelled, asserting that the Court of Appeals for the
Federal Circuit's opinion in United States v. Utex International,
857 F. 2d 1408 (1988), is supportive.  Protestant put it this
way: "[T]he Court of Appeals for the Federal Circuit held that
liquidation is final on the issue of admissibility absent timely
reliquidation or protest."  The court stated the following: "But
absent timely reliquidation or protest it [liquidation] was final
as to all aspects of the entry."  Id. 1412.

     In Utex, Customs liquidated an entry of shrimp before
issuing a notice of redelivery on the basis of FDA's issuance of
a notice of refusal of admission.  Ultimately, the court
concluded that a redelivery notice is invalid if issued after
liquidation has become final.  Liquidation is final on the date
of original liquidation if there is no subsequent reliquidation
under applicable statutes, or if no protest is filed.  Thus, the
effect of reliquidation or protest under applicable statutes is
to toll the calendar on final liquidation: If there is no
reliquidation or protest, liquidation is effectively final on the
date of original liquidation; if there is reliquidation or
protest, the finality of liquidation is tolled and liquidation
will become final at a later date.

     In Utex, because there was no reliquidation or protest, and
because Customs did not suspend liquidation pending the FDA's
determination, the liquidation was effectively final on the date
of original liquidation.  The redelivery notice, post-dating the
final liquidation, was invalid.

     In the aftermath of Utex, Customs issued telex instructions
to the field.  Where a notice of refusal of admission is issued
after liquidation, and 90 days from the date of liquidation have
not passed, Customs will reliquidate under 19 U.S.C. 1501 and
issue a redelivery notice.  The CF 4647 will notify the importer
that the entries "are being reliquidated" because of
inadmissibility, and that notice of such will be posted in
accordance with regulations (19 CFR 159).  The importer will be
informed that it has 30 days from the date of the reliquidation
notice to redeliver the merchandise.  Reliquidation under section
1501 supersedes the original liquidation.  The reliquidation, in
this way, has the effect of tolling the "finalization" of
liquidation until after the importer is notified of
inadmissibility and the redelivery requirement.  The foregoing
telex instruction post-dates the events addressed by the instant
protest and was not followed in this case.  

     The instant protest was filed against Customs decision to
demand redelivery.  It does not challenge the liquidation of May
6, 1988.  Therefore, since there was no reliquidation under 19
U.S.C. 1501, or protest under 19 U.S.C. 1514, within 90 days of
the liquidation, the liquidation became final as of May 6, 1988. 
As in Utex, the redelivery notice post-dates final liquidation
and is therefore invalid.  The Utex court suggested that had the
liquidation in that case been timely protested, Customs might
have been able to address the issue of finality.  (See the
discussion at page 1411 of the opinion, 857 F. 2d 1408 (1988).) 
That did not happen in Utex, nor did it happen on the facts of
this protest. The demand for redelivery issued on July 8, 1988, subsequent
to liquidation, and in the absence of timely (voluntary)
reliquidation or protest (of the liquidation), was invalid.

     Based on the foregoing, you are instructed to grant the
protest.

                               Sincerely,




                               John Durant, Director
                               Commercial Rulings Division