BON-2/PRO-2-02-RR:IT:EC 225886 AJS
CMC Director 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 1001-94-107866; Notice of Redelivery, 19 CFR 141.113;
19 CFR 113.62; HQ 224854; HQ 951300.
Dear Sir or Madame:
This is our decision in protest 1001-94-107866, dated
November 14, 1994, concerning a demand for redelivery of imported
ladies 100% cotton knitted undershorts.
FACTS:
The subject merchandise consisted of two entries. Entry
number 523-xxxx288-6 consisted of boxer-style flannel garments,
which arrived on July 24, 1994, and was submitted to Customs on
July 25. The protestant had classified the subject boxers under
subheading 6208.21.2010 of the Harmonized Tariff Schedule of the
United States (HTSUS). This subheading identified the articles
as women's cotton briefs and panties, requiring a visa quota
category 352, and dutiable at 8.1% ad valorem.
On or about July 27, 1994, according to the Field National
Import Specialists (FNIS) which handles Hong Kong-origin knitted
wearing apparel, samples of the subject boxers were examined and
determined to be woven apparel. Subsequently, it was determined
that the garments were classifiable within subheading
6204.62.4055, HTSUS, which provides for women's outerwear/shorts,
requiring a textile category 348 export license, dutiable at
17.7% ad valorem. Customs detained this entry and conveyed these
developments to the protestant on or about July 28, 1994.
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Entry number 523-xxxx683-8 also consisted of boxer-style
flannel garments which arrived on July 28, 1994, and was
submitted to Customs on July 29, 1994. These garments carried
the same classification as the first entry.
On July 29, 1994, the protestant submitted further
information to facilitate Custom's evaluation of the subject
boxers. By affidavit, the FNIS, declared that on July 29th, it
informed the protestant that entry number 523-xxxx288-6 was being
released "conditionally", pending further review by the National
Import Specialists (NIS), but that if an outerwear/shorts
classification was confirmed, Customs would issue Notices to
Redeliver on the basis that the protestant had failed to present
the proper visa. The protestant denies that it was informed that
its merchandise was being released conditionally pending further
review.
On August 2, 1994, Customs examined the protestant's second
entry. The date of entry and release of the subject entries was
on or about August 2, 1994.
The protestant claims that no sample of the merchandise was
requested after the date of release nor was there any other
occurrence, to its knowledge, which established a conditional
release period. On August 22, 1994, a Customs Form (CF) 28,
Request for Information, was issued to the protestant for the
subject entries. The CF 28 requested the protestant provide a
manufacturer's invoice as well as information on royalties, a
buying agent and commissions. On September 9, 1994, a CF 4647,
Notice to Mark and/or Notice to Redeliver, was issued for each of
the subject entries requesting the merchandise be brought into
compliance concerning classification and visa requirements or
returned to Customs custody within 30 days of this notice.
ISSUE:
Whether the subject Notices of Redelivery were timely issued
within the meaning of 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 September 9, 1994, and the date of this
protest is November 14, 1994. We also note that a demand for
redelivery is protestable pursuant to 19 U.S.C. 1514(a)(4).
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 the 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
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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 limitations 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:
If merchandise is released conditionally from Customs
custody to the principal before . . . its right of admission
into the United States is determined, the principal agrees to
redeliver timely, on demand by Customs, the merchandise
released if it:
(1) Fails to comply with the laws or regulations governing
admission into the United States; . . .
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).
Paragraph (e) of this provision also provides as follows:
If merchandise is released conditionally to the principal
before its right of admission into the United States is
determined, the principal, after notification, agrees to . . . do
any other thing to the merchandise in order to comply with
the law and regulations governing its admission into the United
States within the time period set forth in the notification.
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). 19 CFR 141.0a(i) states
that released conditionally means any release from Customs
Custody before liquidation. A notice of 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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In this instance, the subject merchandise was released from
Customs custody on or about August 2, 1994. For the first and
lead entry, Customs claimed that it informed the protestant that
this release was conditional pending further review by the NIS.
The protestant disputes this claim. Assuming arguendo that the
protestant is correct, Customs would have initially had 30 days
from August 2 to issue a Notice of Redelivery. Requests for
further information were made on August 22, 1994. These requests
sought information for both entries (i.e., dated July 25 and July
29 respectively). These requests were made within 30 days from
release of the merchandise on or about August 2, 1994. Customs
view its verbal communication and requests for information as
establishing a separate conditional release period apart from the
initial period of 30 days from entry. As stated previously, this
separate conditional release period would end 30 days from the
receipt of the requested information. On September 9, Customs
issued Notices of Redelivery for the subject entries apparently
because the requested information was not received. Therefore,
these notices were timely issued inasmuch as the conditional
release period had not expired. Consequently, we need not decide
the issue of whether Customs verbal communication to the
protestant on July 29 established a conditional release period
because such a period was clearly established on August 22 and
Customs timely took action in relation to this period.
HOLDING:
The protest is denied. The Notices of Redelivery were
timely issued within the meaning of 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
making 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 Service, Freedom of Information Act and other public
access channels.
Sincerely,
Director,
International Trade Compliance Division