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HQ 225319




July 26, 1994

BON-2-CO:R:C:E 225319 SLR

CATEGORY: LIQUIDATION

Regional Commissioner of Customs c/o Protest and Control Section
6 World Trade Center, Room 762
New York, New York 10048-0945

RE: Application for Further Review of Protest No. 1001-94-101263; Notice of Redelivery; Timeliness; Samples; 19 CFR 141.113(b)

Dear Sir:

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

FACTS:

Calvin Klein Industries, Inc., the protestant, imported certain knit garments, style 400, that were made in Hong Kong. The merchandise was entered on October 14, 1993, under subheading 6110.10.1020, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which falls under visa category 446.

On November 3, 1993, Customs issued a Customs Form (CF) 28 - Request for Information - requesting a sample of style 400. A sample was provided to Customs by the protestant on December 22, 1993. On January 7, 1994, the sample was sent with a CF 6431 to the National Import Specialist. The national import specialist returned the CF 6431 on February 2, 1994, confirming the fact that the knit garments had been misclassified and that the correct classification for the merchandise was subheading 6109.90.2035, HTSUSA, visa category 438. A Notice of Redelivery (CF 4647) was issued on February 14, 1994.

On February 18, 1994, the protestant filed the instant protest, requesting further review. It maintains that the Notice of Redelivery was untimely. The subject entry has not been liquidated.

ISSUE:

Whether the Notice of Redelivery was timely.

LAW AND ANALYSIS:

Initially, we note that the protest, with application for further review, was timely filed in accordance with 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 19 U.S.C.

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 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 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 limitation 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:

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, 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 conditional release period; or (2) if there is an occurrence establishing a 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). A notice of redelivery may never be issued after liquidation becomes final (United States v. Utex International Inc., 6 Fed. Cir. (T) 166 (1988)).

Here, a conditional release period was established with the issuance of the CF 28 on November 3, 1993. (This occurred within 30 days of the original release of the merchandise.) The protestant forwarded the requested sample on December 22, 1993. Customs had 30 days from receipt of the sample to issue a Notice of Redelivery. The CF 4647, however, was issued on February 14, 1994. This was well beyond the 30-day time period. The Notice of Redelivery was not issued "promptly"; therefore, it was untimely.

HOLDING:

The Notice of Redelivery was not timely in this case. This protest should be granted.

In accordance with Section 3A(ll)(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 mailing 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, Lexis, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division


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