BON-2-CO:R:C:E 225440 AJS
Regional Commissioner of Customs
U.S. Customs Service
c/o Protest and Control Section
6 World Trade Center, Room 761
New York, NY 10048-0945
RE: Protest 1001-94-103133; 19 CFR 113.62(d); Notice of
Redelivery; 19 CFR 141.113; HQ 224854; HQ 224872.
Dear Sir or Madame:
This is our decision in protest 1001-94-103133, dated April
13, 1994, concerning a demand for redelivery of television
receivers.
FACTS:
The subject television receivers were released and entered
on January 15, 1994. No information in the file indicates that
the release was subject to a conditional release period other
than the period beginning with the date of release. A physical
sample of the merchandise was not taken, nor was a Customs Form
(CF) 28 issued requesting a sample. The Food and Drug
Administration (FDA) examined documents for the merchandise on
February 22, 1994, and issued a Notice of Detention and Hearing
for the subject merchandise on February 25, 1994. Customs issued
a CF 4647, Notice to Redeliver, for the subject merchandise on
March 28, 1994.
ISSUE:
Whether the subject notice to redeliver was timely issued
pursuant to 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 is March 28, 1994, and the date of this
protest is April 13, 1994. We also note the a demand for
redelivery is protestable pursuant to 19 U.S.C. 1514(a)(4).
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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 141.113(f) of the Customs Regulations (19 CFR
141.113(f)) states the following time limitation for demands for
the return of merchandise:
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 of the Customs Regulations (19 CFR 113.62)
contains the basic importation and entry bond conditions.
Paragraph (d) of this provision provides as follows:
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).
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). 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 January 15, 1994. No evidence indicates that
there was any other conditional release period established. The
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subject Notice of Redelivery was issued on March 28, 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.
HOLDING:
The protest is granted. The Notice of Redelivery was not
timely issued as required by 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
mailing 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, Freedom of Information Act and other public access
channels.
Sincerely,
John Durant, Director
Commercial Rulings Division