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HQ 224872



July 5, 1994

BON-2/ENT-1-07/PRO-2-03-CO:R:C:E 224872 SR

CATEGORY: LIQUIDATION

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)).

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
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

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