PRO-2-02/LIQ-9-02/BON-2-CO:R:C:E 225028 PH
District Director of Customs
U.S. Customs Service
200 East Bay Street, Room 121
Charleston, South Carolina 29401
RE: Protest No. 1601-93-100211; Notice of Redelivery; Amendment
of Notice of Redelivery; Timeliness of Notice of Redelivery;
19 CFR 141.113(b); 19 U.S.C. 1514
Dear Sir:
The above-referenced protest was forwarded to this office
for further review. We have considered the evidence provided,
and the points raised, by your office and the protestant. Our
decision follows.
FACTS:
According to the file, on February 3, 1992, the protestant
imported the merchandise under consideration, 300 bales of
sheets, from Pakistan. According to our records, the merchandise
was released by Customs on February 7, 1992. The merchandise was
subject to quota and a visa (for category 666) was provided to
Customs.
On February 26, 1992, Customs issued a Notice of Redelivery
(Customs Form 4647) to the protestant, on the basis that "lab
analysis revealed that these sheets are in chief weight of cotton
[and] a visa for category 361 must be presented." The protestant
protested the Notice of Redelivery (Protest 1601-92-100055) and
the protest was allowed (see ruling 951988, June 3, 1993). The
basis for granting the protest in ruling 951988 was that the
merchandise under consideration was classifiable under subheading
6302.32.2040, Harmonized Tariff Schedule of the United States
Annotated (HTSUSA), for which a visa for category 666 was
required, rather than under subheading 6302.31.2040, HTSUSA, for
which a visa for category 361 would have been required. As noted
above, a visa for category 666 was provided to Customs. On the
basis of the protest decision, the February 26, 1992, Notice of
Redelivery was cancelled (according to a notation in the file,
cancellation of the Notice was on July 9, 1993).
On July 9, 1993, Customs issued a second Notice to Redeliver
to the protestant. The basis for this Notice was:
Based on decision of commingled merchandise [in ruling
951988, referred to above], the classification is
6302.32.20402, category 666. Lab analysis determined the
correct weight is 18,839 kgs. Your visa is for only 15,000.
A new visa or waiver for 18,839 kgs, must be presented.
According to Customs records, the entry has not yet been
liquidated. On September 27, 1993, the protestant filed the
protest, with application for further review, under
consideration. The protestant contends that the second Notice to
Redeliver was untimely.
ISSUE:
Was the Notice to Redeliver timely in this case?
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 (see 19 U.S.C. 1514 and 19 CFR
Part 174). We also note that the decision to issue a demand for
redelivery is protestable under the Customs protest statute (see
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 (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 shall 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).
Recently, the interpretation of these provisions has been
thoroughly considered (see rulings 088880, dated March 19, 1992;
223538, dated October 1, 1992; and 224566 and 951300, both dated
August 3, 1993). Customs position now is that a Notice of
Redelivery must be "promptly" issued (see Customs Service
Decisions (C.S.D.'s) 90-99, 89-100, and 86-21). It is Customs
position that 19 CFR 141.113(b) has a time limitation of
"promptness" (i.e., 30 days), despite the broad drafting language
of the regulation itself (i.e., "[i]f at any time after entry
..."). It is Customs position that a Notice of Redelivery is not
timely when it is issued more than 30 days after release of the
merchandise by Customs and no Request for Information (Customs
Form 28) is issued or any other action is taken to establish a
different conditional release period.
In this case, a Notice of Redelivery was timely issued
(i.e., the February 26, 1992, Notice). The Notice of Redelivery
was timely protested and, pursuant to the protest decision, the
Notice was cancelled. A new Notice to Redeliver was issued on
July 9, 1993, and this Notice is the subject of this protest.
The reason given for the initial Notice of Redelivery was that
the merchandise was in chief value of cotton and a visa for a
category for such merchandise should have been presented, instead
of the visa which was presented (i.e., the reason for the initial
Notice of Redelivery was that the visa presented was for the
wrong visa category). The reason given for the second Notice to
Redeliver was that the correct weight of the merchandise had been
found to be 18,832 kilograms and the visa which was presented was
for only 15,000 kilograms (i.e., the reason for the second Notice
to Redeliver was that the visa presented was for an insufficient
quantity).
Under Customs position on the timeliness of Notices of
Redelivery, because the second Notice was issued more than 30
days after release of the merchandise, it cannot have been timely
unless: (1) the second Notice may be considered timely on the
basis of the first Notice, because the second Notice was
considered an amendment of, or considered to have been merged
with, the first Notice; or (2) the issuance of the initial Notice
created a conditional release period.
There is no provision in the Customs Regulations providing
for the amendment of redelivery notices. However, we believe
that a comparison to protest procedures may be helpful in this
regard (see Customs Service Decision (C.S.D.) 85-22, analogizing
a redelivery notice to the notice of denial of a protest).
Initially, we note that just as a protest is required to have a
minimal level of specificity (see Grover Piston Ring Co., Inc. v.
United States, 3 Fed. Cir. (T) 57, 58, 752 F.2d 626 (1985), "The
statute [i.e., 19 U.S.C. 1514] specifies that the protest must
set forth each decision (liquidation) protested, each category of
merchandise affected by each such decision, and the nature of
each objection and reasons therefor" (emphasis in original); see
also United States v. Eaton Mfg. Co., 60 CCPA 23, 29, C.A.D.
1076, 469 F.2d 1098 (1972), and Mattel, Inc. v. United States, 72
Cust. Ct. 257, 262, C.D. 4547, 377 F. Supp. 955 (1974)), so a
redelivery notice is required to contain enough information to
enable the importer to protest the demand for redelivery (see
C.S.D. 85-22, referred to above). C.S.D. 85-22 held that "[i]n
the case of textile goods which are required to have a visa based
on quantity it is sufficient for a redelivery notice to identify
the entry number and date, to describe the merchandise that is to
be redelivered, and the reason for the redelivery."
A protest may be amended to set forth objections to a
decision or decisions which were not the subject of the original
protest, "any time prior to the expiration of the time in which
such protest could have been filed under [19 U.S.C. 1514]" (19
U.S.C. 1514, emphasis added; see also 19 CFR 174.14). The same
would be true of a redelivery notice (i.e., an amended redelivery
notice could be issued within the 30-day period in which the
initial redelivery notice was required to be issued). An
amendment to a protest, adding alternative claims and/or
additional grounds or argument, may be accepted at any time prior
to disposition of the protest (see 19 CFR 174.28; see also, U.S.
Ct. Int. Trade Rule 15, 28 U.S.C.A.; American Mail Line, Ltd. v.
United States, 34 CCPA 1, C.A.D. 335 (1946); Schieffelin Co. and
Beitzell Co., Inc. v. United States, 61 Cust. Ct. 397, C.D. 3640
(1968), affirmed, 57 CCPA 66, C.A.D. 978, 424 F.2d 1396 (1970),
cert. den., 400 U.S. 869 (1970), rehearing den., 400 U.S. 1002
(1971)). In the case under consideration, the second Notice to
Redeliver was not issued within the 30-day period after release
of the merchandise. The second Notice was not issued until the
first Notice was cancelled. Clearly, under the above analogy to
protests, the second Notice may not be considered a timely
amendment to the first Notice (because the second Notice was not
issued until disposition (i.e., cancellation) of the first
Notice).
(NOTE: By the above analogy, we are not ruling on whether
or not a redelivery notice may be amended after expiration of the
time in which the redelivery notice could have been issued.
Since in this case the second redelivery notice was not issued
until disposition (i.e., cancellation) of the first redelivery
notice, a decision on that issue is not necessary for resolution
of this protest. In this regard, however, we note that there is
a distinction between protests and redelivery notices; i.e.,
amendment of the former is specifically provided for (see above
citations), and there is no specific provision for amendment of
the latter.)
In regard to the question of whether the untimely Notice to
Redeliver may be considered merged with the timely Notice of
Redelivery, see United States v. National Gum & Mica Co., 9 Cust.
Ct. App. 250, T.D. 38207 (1919). In that case, the Court held
that a protest which was insufficient could not be remedied, even
though it was combined by stipulation of the parties with three
protests related to similar merchandise which were sufficient
(i.e., the three sufficient protests contained a specific claim
for free entry of the merchandise under a specific tariff
provision and the insufficient protest did not). Analogously, in
this protest the initial timely Notice of Redelivery may not be
remedied by, or merged into, the untimely Notice to Redeliver
issued after the initial Notice of Redelivery was determined to
be invalid.
In regard to the question of whether the issuance of the
initial Notice of Redelivery created a conditional release
period, we note that C.S.D. 86-21, referred to above, considered
the interpretation of the term "conditional release period", as
used in 19 CFR 113.62 and above. In order to determine whether a
conditional release period has been created, "the question is
whether another time limit [i.e., other than the 30-day time
period after release of the merchandise in section 113.62(c)]
exists in the Regulations" (C.S.D. 86-21, bound edition of 1986
Customs Bulletin, page 642). An example of a conditional release
period given in C.S.D. 86-21 is the 180-day period provided for
in 19 CFR 12.80(e)(2).
There is no other time limit (i.e., other than the 30-day
period after release of the merchandise) created as a result of
the issuance of a Notice for Redelivery which is subsequently
cancelled. Therefore, the protested Notice to Redeliver was
untimely (i.e., it was issued more than 30 days after the date of
release of the merchandise in question and no other action was
taken to establish a different conditional release period).
Therefore, based on the foregoing, the protest must be
GRANTED.
HOLDING:
The Notice to Redeliver was not timely in this case.
The protest is GRANTED. 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 mailing of the 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, Lexis, Freedom of
Information Act, and other public access channels.
Sincerely,
John Durant, Director