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HQ 225028


March 14, 1994

PRO-2-02/LIQ-9-02/BON-2-CO:R:C:E 225028 PH

CATEGORY: LIQUIDATION

District Director of Customs
U.S. Customs Service
200 East Bay Street, Room 121
Charleston, South Carolina 29401

RE: Protest No. 1601-93-100211; Notice of Redelivery; Amendment of Notice of Redelivery; Timeliness of Notice of Redelivery; 19 CFR 141.113(b); 19 U.S.C. 1514

Dear Sir:

The above-referenced protest was forwarded to this office for further review. We have considered the evidence provided, and the points raised, by your office and the protestant. Our decision follows.

FACTS:

According to the file, on February 3, 1992, the protestant imported the merchandise under consideration, 300 bales of sheets, from Pakistan. According to our records, the merchandise was released by Customs on February 7, 1992. The merchandise was subject to quota and a visa (for category 666) was provided to Customs.

On February 26, 1992, Customs issued a Notice of Redelivery (Customs Form 4647) to the protestant, on the basis that "lab analysis revealed that these sheets are in chief weight of cotton [and] a visa for category 361 must be presented." The protestant protested the Notice of Redelivery (Protest 1601-92-100055) and the protest was allowed (see ruling 951988, June 3, 1993). The basis for granting the protest in ruling 951988 was that the merchandise under consideration was classifiable under subheading 6302.32.2040, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), for which a visa for category 666 was required, rather than under subheading 6302.31.2040, HTSUSA, for which a visa for category 361 would have been required. As noted above, a visa for category 666 was provided to Customs. On the basis of the protest decision, the February 26, 1992, Notice of Redelivery was cancelled (according to a notation in the file, cancellation of the Notice was on July 9, 1993).

On July 9, 1993, Customs issued a second Notice to Redeliver to the protestant. The basis for this Notice was:

Based on decision of commingled merchandise [in ruling 951988, referred to above], the classification is 6302.32.20402, category 666. Lab analysis determined the correct weight is 18,839 kgs. Your visa is for only 15,000. A new visa or waiver for 18,839 kgs, must be presented.

According to Customs records, the entry has not yet been liquidated. On September 27, 1993, the protestant filed the protest, with application for further review, under consideration. The protestant contends that the second Notice to Redeliver was untimely.

ISSUE:

Was the Notice to Redeliver timely in this case?

LAW AND ANALYSIS:

Initially, we note that the protest, with application for further review, was timely filed under the statutory and regulatory provisions for protests (see 19 U.S.C. 1514 and 19 CFR Part 174). We also note that the decision to issue a demand for redelivery is protestable under the Customs protest statute (see 19 U.S.C. 1514(a)(4)).

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 shall 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).

Recently, the interpretation of these provisions has been thoroughly considered (see rulings 088880, dated March 19, 1992; 223538, dated October 1, 1992; and 224566 and 951300, both dated August 3, 1993). Customs position now is that a Notice of Redelivery must be "promptly" issued (see Customs Service Decisions (C.S.D.'s) 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 language of the regulation itself (i.e., "[i]f at any time after entry ..."). 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 action is taken to establish a different conditional release period.

In this case, a Notice of Redelivery was timely issued (i.e., the February 26, 1992, Notice). The Notice of Redelivery was timely protested and, pursuant to the protest decision, the Notice was cancelled. A new Notice to Redeliver was issued on July 9, 1993, and this Notice is the subject of this protest. The reason given for the initial Notice of Redelivery was that the merchandise was in chief value of cotton and a visa for a category for such merchandise should have been presented, instead of the visa which was presented (i.e., the reason for the initial Notice of Redelivery was that the visa presented was for the wrong visa category). The reason given for the second Notice to Redeliver was that the correct weight of the merchandise had been found to be 18,832 kilograms and the visa which was presented was for only 15,000 kilograms (i.e., the reason for the second Notice to Redeliver was that the visa presented was for an insufficient quantity).

Under Customs position on the timeliness of Notices of Redelivery, because the second Notice was issued more than 30 days after release of the merchandise, it cannot have been timely unless: (1) the second Notice may be considered timely on the basis of the first Notice, because the second Notice was considered an amendment of, or considered to have been merged with, the first Notice; or (2) the issuance of the initial Notice created a conditional release period.

There is no provision in the Customs Regulations providing for the amendment of redelivery notices. However, we believe that a comparison to protest procedures may be helpful in this regard (see Customs Service Decision (C.S.D.) 85-22, analogizing a redelivery notice to the notice of denial of a protest). Initially, we note that just as a protest is required to have a minimal level of specificity (see Grover Piston Ring Co., Inc. v. United States, 3 Fed. Cir. (T) 57, 58, 752 F.2d 626 (1985), "The statute [i.e., 19 U.S.C. 1514] specifies that the protest must set forth each decision (liquidation) protested, each category of merchandise affected by each such decision, and the nature of each objection and reasons therefor" (emphasis in original); see also United States v. Eaton Mfg. Co., 60 CCPA 23, 29, C.A.D. 1076, 469 F.2d 1098 (1972), and Mattel, Inc. v. United States, 72 Cust. Ct. 257, 262, C.D. 4547, 377 F. Supp. 955 (1974)), so a redelivery notice is required to contain enough information to enable the importer to protest the demand for redelivery (see C.S.D. 85-22, referred to above). C.S.D. 85-22 held that "[i]n the case of textile goods which are required to have a visa based on quantity it is sufficient for a redelivery notice to identify the entry number and date, to describe the merchandise that is to be redelivered, and the reason for the redelivery."

A protest may be amended to set forth objections to a decision or decisions which were not the subject of the original protest, "any time prior to the expiration of the time in which such protest could have been filed under [19 U.S.C. 1514]" (19 U.S.C. 1514, emphasis added; see also 19 CFR 174.14). The same would be true of a redelivery notice (i.e., an amended redelivery notice could be issued within the 30-day period in which the initial redelivery notice was required to be issued). An amendment to a protest, adding alternative claims and/or additional grounds or argument, may be accepted at any time prior to disposition of the protest (see 19 CFR 174.28; see also, U.S. Ct. Int. Trade Rule 15, 28 U.S.C.A.; American Mail Line, Ltd. v. United States, 34 CCPA 1, C.A.D. 335 (1946); Schieffelin Co. and Beitzell Co., Inc. v. United States, 61 Cust. Ct. 397, C.D. 3640 (1968), affirmed, 57 CCPA 66, C.A.D. 978, 424 F.2d 1396 (1970), cert. den., 400 U.S. 869 (1970), rehearing den., 400 U.S. 1002 (1971)). In the case under consideration, the second Notice to Redeliver was not issued within the 30-day period after release of the merchandise. The second Notice was not issued until the first Notice was cancelled. Clearly, under the above analogy to protests, the second Notice may not be considered a timely amendment to the first Notice (because the second Notice was not issued until disposition (i.e., cancellation) of the first Notice).

(NOTE: By the above analogy, we are not ruling on whether or not a redelivery notice may be amended after expiration of the time in which the redelivery notice could have been issued. Since in this case the second redelivery notice was not issued until disposition (i.e., cancellation) of the first redelivery notice, a decision on that issue is not necessary for resolution of this protest. In this regard, however, we note that there is a distinction between protests and redelivery notices; i.e., amendment of the former is specifically provided for (see above citations), and there is no specific provision for amendment of the latter.)

In regard to the question of whether the untimely Notice to Redeliver may be considered merged with the timely Notice of Redelivery, see United States v. National Gum & Mica Co., 9 Cust. Ct. App. 250, T.D. 38207 (1919). In that case, the Court held that a protest which was insufficient could not be remedied, even though it was combined by stipulation of the parties with three protests related to similar merchandise which were sufficient (i.e., the three sufficient protests contained a specific claim for free entry of the merchandise under a specific tariff provision and the insufficient protest did not). Analogously, in this protest the initial timely Notice of Redelivery may not be remedied by, or merged into, the untimely Notice to Redeliver issued after the initial Notice of Redelivery was determined to be invalid.

In regard to the question of whether the issuance of the initial Notice of Redelivery created a conditional release period, we note that C.S.D. 86-21, referred to above, considered the interpretation of the term "conditional release period", as used in 19 CFR 113.62 and above. In order to determine whether a conditional release period has been created, "the question is whether another time limit [i.e., other than the 30-day time period after release of the merchandise in section 113.62(c)] exists in the Regulations" (C.S.D. 86-21, bound edition of 1986 Customs Bulletin, page 642). An example of a conditional release period given in C.S.D. 86-21 is the 180-day period provided for in 19 CFR 12.80(e)(2).

There is no other time limit (i.e., other than the 30-day period after release of the merchandise) created as a result of the issuance of a Notice for Redelivery which is subsequently cancelled. Therefore, the protested Notice to Redeliver was untimely (i.e., it was issued more than 30 days after the date of release of the merchandise in question and no other action was taken to establish a different conditional release period).

Therefore, based on the foregoing, the protest must be GRANTED.

HOLDING:

The Notice to Redeliver was not timely in this case.

The protest 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, 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 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, Lexis, Freedom of Information Act, and other public access channels.

Sincerely,

John Durant, Director

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