BON-2-CO:R:C:E 223538 SLR
U.S. Customs
9901 Pacific Highway
Blaine, WA 98230
Attn: Protest Reviewer
RE: Decision on Application for Further Protest Review
No. 3004-91-000197; Timeliness of Notice of Redelivery;
"Calcium Sand"; Coral; Heading 0508, Harmonized Tariff
Schedule of the United States Annotated (HTSUSA)
Dear Sir:
The above-referenced protest was forwarded to our office for
further review. We have considered the facts and issues raised.
Our decision follows.
FACTS:
On July 12, 1991, the protestant entered a product invoiced
as "BC Calcium Sand." Due to the protestant's classification of
the product, the entry was placed on bypass. Consequently, no
samples were taken prior to the shipment's immediate release.
On September 3, 1991, Customs issued a notice of redelivery
for the July 12, 1991 entered merchandise. Evidently, Customs
laboratory analysis of samples taken from a July 6, 1991, entry
of the same merchandise had revealed that "BC Calcium Sand"
contained pieces of coral which are prohibited from entry into
the United States under applicable Fish and Wildlife laws.
The protestant currently challenges Customs September 3,
1991, notice of redelivery. The protestant maintains that the
notice should be cancelled as it was issued beyond thirty days
of the product's release. The entry in question has not been
liquidated.
ISSUES:
I. Was the notice of redelivery timely issued?
II. For liquidation purposes, what is the proper
classification of the "calcium sand"?
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LAW AND ANALYSIS:
ISSUE I
Was the notice of redelivery timely issued?
The Customs Regulations governing this issue are found in
19 CFR 141.113 and 113.62. Under paragraph (b) of section
141.113:
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 various marking and labeling
requirements], he shall promptly demand the
return to Customs custody of any such merchandise
which has been released.
Paragraph (f) of section 141.113 contains a time limitation
for demands for the return of merchandise to Customs custody
under section 141.113. Under this provision:
A demand for the return of merchandise to
Customs custody shall not be made after the
liquidation of the entry covering such
merchandise has become final.
Section 113.62 contains the basic importation and entry bond
conditions. Under paragraph (c) of this provision:
It is understood that any demand 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).
Our interpretation of these provisions is 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 an additional
release period; or (2) if there is an occurrence establishing an
additional release period, no later than 30 days after the end of
that period (see Customs Service Decision (C.S.D.) 86-21).
A notice or redelivery may never be issued after liquidation
becomes final (United States v. Utex International Inc., 6 Fed.
Cir. (T) 166 (1988)).
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For the July 12, 1991, entry, there was no "occurrence"
establishing an additional release period -- after all, the entry
was on bypass. Samples were taken from the July 9, 1991, entry;
however, it is a basic tenet of Customs law that each entry
stands alone. Consequently, the release of the July 12, 1991,
entry is controlled by the first clause of 19 CFR 113.62(c).
The September 3, 1991, notice of redelivery was issued more
than 30 days after the release of the subject merchandise. The
notice of redelivery, therefore, was not "promptly" issued.
Accordingly, this protest must be granted.
ISSUE II
For liquidation purposes, what is the proper classification
of the "calcium sand"?
The General Rules of Interpretation (GRI's) taken in their
appropriate order provide a framework for classification of
merchandise under the HTSUSA. The majority of imported goods are
classified by application of GRI 1, that is, according to the
terms of the headings of the tariff schedule and any relative
section or chapter notes. The Explanatory Notes (EN's) to the
Harmonized Commodity Description and Coding System, which
represent the official interpretation of the tariff at the
international level, facilitate classification under the HTSUSA
by offering guidance in understanding the scope of the headings
and GRI's.
Heading 2505, HTSUSA, provides for natural sands of all
kinds, whether or not colored. The EN's to 2505 indicate that
the heading includes:
...all natural sea, lake, river or quarry sand (i.e.,
sand in the form of more or less fine particles
resulting from the natural disintegration of minerals),
but excludes sands and powders obtained artificially,
for example, by crushing (classified in heading 25.17
or in the heading for the rock concerned).
On the other hand, heading 0508, HTSUSA, provides for coral
and similar materials, unworked or simply prepared; shells of
molluscs, crustaceans or echinoderms and cuttlebone, unworked or
simply prepared.
The importer contends that the subject merchandise is
purchased, in the Philippines, under the name biolastic
limestone, is exported to Canada where it is graded and treated
with chemicals to kill bacteria, and then, as a manufactured
product, is exported to the United States and sold as calcium
sand.
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The merchandise does not consist of fine particles, as is
characteristic of sand, but rather consists of discernable pieces
of coral and shells. Moreover, from the information provided, it
appears the grading and chemical treatment of the coral and
shells, in Canada, is minor and merely amounts to a simple
preparation of the merchandise. This is indicative of
merchandise included in heading 0508.
HOLDING:
For liquidation purposes, the "calcium sand" is classifiable
in subheading 0508.00.0000, HTSUSA, as "Coral and similar
materials, unworked or simply prepared but not otherwise worked;
shells of molluscs, crustaceans or echinoderms and cuttlebone,
unworked or simply prepared but not cut to shape, powder and
waste thereof." The column one rate of duty provides that the
merchandise is duty free.
Customs failed to issue the September 3, 1991, notice of
redelivery in a timely fashion. Consequently, you are instructed
to allow the protest in full. A copy of this decision should be
attached to the Customs Form 19 and mailed to the protestant as
part of the notice of action on the protest.
Sincerely,
John Durant, Director
Commercial Rulings Division