BON-2/ENT-1-07/PRO-2-03-CO:R:C:E 224872 SR
Regional Commissioner of Customs
c/o Head; Protest and Control Section
New York Seaport
6 World Trade Center, Room 761
New York, N.Y. 10048-0945
RE: Application for Further Review of Protest No. 1001-91-
103897; Notice of Redelivery; Timeliness; 19 CFR 141.113(b).
Dear Sir:
The above-referenced protest was forwarded to this office
for further review. We have considered the facts and the issue
raised. Our decision follows.
FACTS:
Santana Ltd., the protestant, imported boy's cotton T-shirts
that were made in China. The T-shirts were entered on November
21, 1990, under subheading 6109.10.0012, Harmonized Tariff
Schedules of the United States (HTSUS) which falls under visa
category 338. The entries were also released conditionally on
November 21, 1990.
After the merchandise was entered, Customs determined that
the T-shirts were incorrectly classified and are subject to visa
category 338S. Samples of the T-shirts were pulled prior to
release. These samples were sent with a Customs Form (CF) 6431
(for internal use between field import specialist and national
import specialist to report classification information) to the
National Import Specialist. The national import specialist
returned the CF 6431 on January 7, 1991, confirming the fact that
the T-shirts had been incorrectly classified. Notice to
Redeliver (CF 4647) was issued on February 21, 1991. The entries
were liquidated on March 8, 1991 and August 16, 1991, under
subheading 6110.20.2065, HTSUS.
The protest was timely filed on May 8, 1991. The decision
to issue a Notice of Redelivery is protestable under the Customs
protest statute (see 19 U.S.C. 1514(a)(4)).
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ISSUE:
Whether the Notice of Redelivery was timely.
LAW AND ANALYSIS:
The Customs Regulations governing this 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 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 (d) 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).
The interpretation of these provisions has been thoroughly
considered (see rulings HQ 224712, dated January 11, 1994; HQ
088880, dated March 19, 1992; and HQ 224566 and 951300, both
dated August 3, 1993). It is now Customs position that a Notice
of Redelivery must be "promptly" issued (see C.S.D. 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 of the Customs Regulation. 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
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action is taken to establish a "different conditional release
period."
In this case a different conditional release period was not
established. A Customs Form 28 was not sent to the importer
because the samples were pulled on the date of entry. Even so a
conditional release period can only extend the release period for
an additional 30 days. In this case the redelivery notice (CF
4647) was not issued until approximately 90 days after the
merchandise was entered and released. The February 21, 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.
It should be noted that a Notice of Proposed Rule Making was
published in the Federal Register (59 FR 14808, dated March 30,
1994) to establish a conditional release period for textile and
textile products that are subject to quotas. The notice states
that currently "Customs may issue a Notice of Redelivery only
within 30 days after release of the merchandise." This rule is
proposed to allow Customs to issue notices of redelivery to
importers of textiles or textile products for a period of up to
180 days after the end of the conditional release period if it is
discovered that the merchandise was imported in violation of visa
or quota restrictions.
HOLDING:
The Notice of Redelivery was not timely in this case. The
protest against the redelivery notices 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 to the
protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with this decision
must be accomplished prior to the mailing of the decision. Sixty
days from the date of this 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 to
the public via the Diskette Subscription Service, Lexis, Freedom
of Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division