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HQ 223538


October 1, 1992

BON-2-CO:R:C:E 223538 SLR

CATEGORY: PROTEST

U.S. Customs
9901 Pacific Highway
Blaine, WA 98230
Attn: Protest Reviewer

RE: Decision on Application for Further Protest Review No. 3004-91-000197; Timeliness of Notice of Redelivery; "Calcium Sand"; Coral; Heading 0508, Harmonized Tariff Schedule of the United States Annotated (HTSUSA)

Dear Sir:

The above-referenced protest was forwarded to our office for further review. We have considered the facts and issues raised. Our decision follows.

FACTS:

On July 12, 1991, the protestant entered a product invoiced as "BC Calcium Sand." Due to the protestant's classification of the product, the entry was placed on bypass. Consequently, no samples were taken prior to the shipment's immediate release.

On September 3, 1991, Customs issued a notice of redelivery for the July 12, 1991 entered merchandise. Evidently, Customs laboratory analysis of samples taken from a July 6, 1991, entry of the same merchandise had revealed that "BC Calcium Sand" contained pieces of coral which are prohibited from entry into the United States under applicable Fish and Wildlife laws.

The protestant currently challenges Customs September 3, 1991, notice of redelivery. The protestant maintains that the notice should be cancelled as it was issued beyond thirty days of the product's release. The entry in question has not been liquidated.

ISSUES:

I. Was the notice of redelivery timely issued?

II. For liquidation purposes, what is the proper classification of the "calcium sand"?

LAW AND ANALYSIS:

ISSUE I

Was the notice of redelivery timely issued?

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 has 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).

Our interpretation of these provisions is that a notice of redelivery must be "promptly" issued, that is, it must be issued either: (1) no later than 30 days after the date the merchandise is released if there is no occurrence establishing an additional release period; or (2) if there is an occurrence establishing an additional release period, no later than 30 days after the end of that period (see Customs Service Decision (C.S.D.) 86-21). A notice or redelivery may never be issued after liquidation becomes final (United States v. Utex International Inc., 6 Fed. Cir. (T) 166 (1988)).

For the July 12, 1991, entry, there was no "occurrence" establishing an additional release period -- after all, the entry was on bypass. Samples were taken from the July 9, 1991, entry; however, it is a basic tenet of Customs law that each entry stands alone. Consequently, the release of the July 12, 1991, entry is controlled by the first clause of 19 CFR 113.62(c).

The September 3, 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.

ISSUE II

For liquidation purposes, what is the proper classification of the "calcium sand"?

The General Rules of Interpretation (GRI's) taken in their appropriate order provide a framework for classification of merchandise under the HTSUSA. The majority of imported goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative section or chapter notes. The Explanatory Notes (EN's) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI's.

Heading 2505, HTSUSA, provides for natural sands of all kinds, whether or not colored. The EN's to 2505 indicate that the heading includes:

...all natural sea, lake, river or quarry sand (i.e., sand in the form of more or less fine particles resulting from the natural disintegration of minerals), but excludes sands and powders obtained artificially, for example, by crushing (classified in heading 25.17 or in the heading for the rock concerned).

On the other hand, heading 0508, HTSUSA, provides for coral and similar materials, unworked or simply prepared; shells of molluscs, crustaceans or echinoderms and cuttlebone, unworked or simply prepared.

The importer contends that the subject merchandise is purchased, in the Philippines, under the name biolastic limestone, is exported to Canada where it is graded and treated with chemicals to kill bacteria, and then, as a manufactured product, is exported to the United States and sold as calcium sand.

The merchandise does not consist of fine particles, as is characteristic of sand, but rather consists of discernable pieces of coral and shells. Moreover, from the information provided, it appears the grading and chemical treatment of the coral and shells, in Canada, is minor and merely amounts to a simple preparation of the merchandise. This is indicative of merchandise included in heading 0508.

HOLDING:

For liquidation purposes, the "calcium sand" is classifiable in subheading 0508.00.0000, HTSUSA, as "Coral and similar materials, unworked or simply prepared but not otherwise worked; shells of molluscs, crustaceans or echinoderms and cuttlebone, unworked or simply prepared but not cut to shape, powder and waste thereof." The column one rate of duty provides that the merchandise is duty free.

Customs failed to issue the September 3, 1991, notice of redelivery in a timely fashion. Consequently, you are instructed to allow the protest in full. A copy of this decision should be attached to the Customs Form 19 and mailed to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director
Commercial Rulings Division


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