HQ 225440 - Protest 1001-94-103133; 19 CFR 113.62(d); Notice of Redelivery; 19 CFR 141.113; HQ 224854; HQ 224872. - United States International Trade Commision Rulings

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HQ 225440

March 29, 1995

BON-2-CO:R:C:E 225440 AJS

CATEGORY: BONDS

Regional Commissioner of Customs
U.S. Customs Service c/o Protest and Control Section
6 World Trade Center, Room 761
New York, NY 10048-0945

RE: Protest 1001-94-103133; 19 CFR 113.62(d); Notice of Redelivery; 19 CFR 141.113; HQ 224854; HQ 224872.

Dear Sir or Madame:

This is our decision in protest 1001-94-103133, dated April 13, 1994, concerning a demand for redelivery of television receivers.

FACTS:

The subject television receivers were released and entered on January 15, 1994. No information in the file indicates that the release was subject to a conditional release period other than the period beginning with the date of release. A physical sample of the merchandise was not taken, nor was a Customs Form (CF) 28 issued requesting a sample. The Food and Drug Administration (FDA) examined documents for the merchandise on February 22, 1994, and issued a Notice of Detention and Hearing for the subject merchandise on February 25, 1994. Customs issued a CF 4647, Notice to Redeliver, for the subject merchandise on March 28, 1994.

ISSUE:

Whether the subject notice to redeliver was timely issued pursuant to 19 CFR 113.62(d).

LAW AND ANALYSIS:

Initially, we note that the subject protest was timely filed pursuant to 19 U.S.C. 1514(c)(2)(B). The date of decision as to which protest is made is March 28, 1994, and the date of this protest is April 13, 1994. We also note the 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 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 different conditional release period; or (2) if there is an occurrence establishing a different 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)).

In this instance, the date of release for the subject merchandise was January 15, 1994. No evidence indicates that there was any other conditional release period established. The
subject Notice of Redelivery was issued on March 28, 1994. Therefore, this Notice was not issued promptly within 30 days after the date of release as required. Accordingly, the subject Notice of Redelivery was not timely issued.

HOLDING:

The protest is granted. The Notice of Redelivery was not timely issued as required by 19 CFR 113.62(d).

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 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, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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