BON-2/ENT-1-07/PRO-1-07-
RR:IT:EC 226943 IOR
Port Director
U.S. Customs Service
1 East Bay St.
Savannah, GA 31401
RE: Application for Further Review of Protest No. 1703-96-100042; Notice to Redeliver; 19 CFR. 141.113(a); 19 C.F.R.
113.62(d); C.S.D. 90-99
Dear Sir:
The above-referenced protest was forwarded to this office
for further review. We have considered the facts and issues
raised, and our decision follows.
FACTS:
The Protest concerns Entry No. 231-xxxx815-9, consisting of
men's long sleeve fleece/thermal hooded jackets. According to
the Entry form in the file, CF 7501, the merchandise was entered
December 11, 1995, however according to Customs records the entry
was made on January 2, 1996. The CF 7501 in the file is stamped
as "rejected." The Entry/Immediate Delivery form indicates that
Entry/Immediate Delivery was rejected on December 20, 1995, and
that the merchandise was sampled on December 20, 1995. According
to the documents in the file, the entry was rejected due to the
improper format of the textile declaration accompanying the
entry. After receipt of a corrected textile declaration, dated
December 29, 1995, the merchandise was entered and released on
January 2, 1996. Prior to release of the merchandise, Customs
retained a sample of the merchandise. According to the Notice of
Damage, Shortage, or Samples Retained, CF 6423, the sample was
taken on December 20, 1995.
A Customs examination, Laboratory Report dated February 6,
1996, concluded that the merchandise is composed of 90.7% cotton
and 9.3% polyester, although the merchandise is labeled as being
80% cotton and 20% polyester. A Notice to Mark and/or Notice to
Redeliver, CF 4647, was issued February 29, 1996, for relabeling
of the merchandise to reflect the correct fabric content in
compliance with the Textile Fiber Products Identification Act (15
U.S.C. 70). The subject entry has not been liquidated to date.
The protestant takes the position that the Notice to Redeliver
was untimely issued.
ISSUE:
Whether the subject Notice to Redeliver was timely issued.
LAW AND ANALYSIS:
Initially, we note that the subject protest was timely filed
under the statutory and regulatory provisions for protests (see
19 U.S.C. 1514 and 19 CFR Part 174). The date of decision as to
which protest is made is February 29, 1996, and the date of this
protest is April 4, 1996. 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 C.F.R. 141.113 and 113.62. Paragraph (a) of section
141.113 provides as follows:
Merchandise not legally marked. Certain merchandise is
required to be marked or labeled pursuant to the following
provisions:
...
(2) Textile Fiber Products Identification Act (15 U.S.C.
70);
...
If such merchandise is found after release to be not legally
marked, the port director may demand its return to Customs
custody for the purpose of requiring it to be properly
marked or labeled. The demand for marking or labeling shall
be made not later than 30 days after the date of entry in
the case of merchandise examined in public stores, and
places of arrival, such as docks, wharfs, or piers. Demand
may be made no later than 30 days after the date of
examination in the case of merchandise examined at the
importer's premises or such other appropriate places as
determined by the district director.
Section 141.113(g) of the Customs regulations 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 contains the basic
importation and entry bond conditions. Paragraph (d) of this
provision sets forth the two periods during which a Notice to
Redeliver may be issued and enforced by a Customs bond:
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).
In Customs Service Decision ("C.S.D.") 89-100 (HQ 220331,
dated May 11, 1989), Customs stated that the laboratory testing
of a sample was an examination under 141.113(a). In C.S.D. 89-100, as in this case, a sample was obtained prior to the release
of the imported merchandise, the sample was examined at the
Customs laboratory and a Notice to Redeliver was issued within 30
days after the lab report was issued. Customs stated in C.S.D.
89-100, citing 19 CFR 11.12b(c), that release of merchandise with
the exception of the sample, does not infer that the examination
has been completed or that admissibility of the merchandise has
been determined. In C.S.D. 89-100, Customs found the Notice to
Redeliver to have been timely under 19 CFR 141.113(a). In the
instant case, as the Notice to Redeliver was issued within 30
days after the lab report was issued, the Notice to Redeliver was
timely issued under 19 CFR 141.113(a).
However, with respect to the bond provisions, we find that
the Notice to Redeliver was not timely issued in accordance with
19 CFR 113.62(d). In C.S.D. 90-99, Customs stated that 19 CFR
113.62 prevents Customs from enforcing a demand for redelivery
issued over 30 days after the date the merchandise was released
unless a conditional release period is established. In this
case, the merchandise was released on January 2, 1996, and the
Notice to Redeliver was not issued within 30 days. No
conditional release period was established by any action of
Customs subsequent to the release of the merchandise. In C.S.D.
90-99 we stated that the beginning of a conditional release
period is the date a CF 28 is issued to the importer, and the end
of the conditional release period is the date Customs receives
the sample. As the sample of the merchandise was obtained by
Customs on December 20, 1995, prior to the release of the
merchandise, even if such action did constitute the end of a
conditional release period, the Notice to Redeliver was not
issued within 30 days of that date.
We note that in Treasury Decision ("T.D.") 94-95, Customs
amended the Customs Regulations to establish a conditional
release period of 180 days on entries of textiles and textile
products for the sole purpose of facilitating a determination as
to whether the country of origin of the entered goods has been
accurately represented to Customs. This amendment will permit
Customs to issue Notices of Redelivery to importers of textiles
and textile products within 30 days after the end of the
conditional release if investigation or information reveals that
the merchandise was claimed to originate in a country where
little or no manufacturing process occurred in order to avoid
quota or visa admissibility requirements. The effective date of
this amendment was January 3, 1995. This amendment is
inapplicable to the subject entry, as the amended provisions
apply only to issues of country of origin.
HOLDING:
The Notice to Redeliver was not timely issued in this case.
Consistent with the decision set forth above, you are hereby
directed to grant the subject protest. 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 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, Freedom of Information Act and other public
access channels.
Sincerely,
Director,
International Trade
Compliance Division