HQ 226943 - Application for Further Review of Protest No. 1703-96-100042; Notice to Redeliver; 19 CFR. ?141.113(a); 19 C.F.R. ?113.62(d); C.S.D. 90-99 - United States International Trade Commision Rulings

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HQ 226943

August 16, 1996

RR:IT:EC 226943 IOR

CATEGORY: BONDS LIQUIDATION

Port Director
U.S. Customs Service
1 East Bay St.
Savannah, GA 31401

RE: Application for Further Review of Protest No. 1703-96-100042; Notice to Redeliver; 19 CFR. ?141.113(a); 19 C.F.R. ?113.62(d); C.S.D. 90-99

Dear Sir:

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

FACTS:

The Protest concerns Entry No. 231-xxxx815-9, consisting of men's long sleeve fleece/thermal hooded jackets. According to the Entry form in the file, CF 7501, the merchandise was entered December 11, 1995, however according to Customs records the entry was made on January 2, 1996. The CF 7501 in the file is stamped as "rejected." The Entry/Immediate Delivery form indicates that Entry/Immediate Delivery was rejected on December 20, 1995, and that the merchandise was sampled on December 20, 1995. According to the documents in the file, the entry was rejected due to the improper format of the textile declaration accompanying the entry. After receipt of a corrected textile declaration, dated December 29, 1995, the merchandise was entered and released on January 2, 1996. Prior to release of the merchandise, Customs retained a sample of the merchandise. According to the Notice of Damage, Shortage, or Samples Retained, CF 6423, the sample was taken on December 20, 1995.

A Customs examination, Laboratory Report dated February 6, 1996, concluded that the merchandise is composed of 90.7% cotton and 9.3% polyester, although the merchandise is labeled as being 80% cotton and 20% polyester. A Notice to Mark and/or Notice to Redeliver, CF 4647, was issued February 29, 1996, for relabeling of the merchandise to reflect the correct fabric content in compliance with the Textile Fiber Products Identification Act (15 U.S.C. 70). The subject entry has not been liquidated to date. The protestant takes the position that the Notice to Redeliver was untimely issued.

ISSUE:

Whether the subject Notice to Redeliver was timely issued.

LAW AND ANALYSIS:

Initially, we note that the subject protest was timely filed under the statutory and regulatory provisions for protests (see 19 U.S.C. ?1514 and 19 CFR Part 174). The date of decision as to which protest is made is February 29, 1996, and the date of this protest is April 4, 1996. We also note that 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 C.F.R. ?141.113 and 113.62. Paragraph (a) of section 141.113 provides as follows:

Merchandise not legally marked. Certain merchandise is required to be marked or labeled pursuant to the following provisions:
...
(2) Textile Fiber Products Identification Act (15 U.S.C. ...
If such merchandise is found after release to be not legally marked, the port director may demand its return to Customs custody for the purpose of requiring it to be properly marked or labeled. The demand for marking or labeling shall be made not later than 30 days after the date of entry in the case of merchandise examined in public stores, and places of arrival, such as docks, wharfs, or piers. Demand may be made no later than 30 days after the date of examination in the case of merchandise examined at the importer's premises or such other appropriate places as determined by the district director.

Section 141.113(g) of the Customs regulations states the following time limitations 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 contains the basic importation and entry bond conditions. Paragraph (d) of this provision sets forth the two periods during which a Notice to Redeliver may be issued and enforced by a Customs bond:

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).

In Customs Service Decision ("C.S.D.") 89-100 (HQ 220331, dated May 11, 1989), Customs stated that the laboratory testing of a sample was an examination under 141.113(a). In C.S.D. 89-100, as in this case, a sample was obtained prior to the release of the imported merchandise, the sample was examined at the Customs laboratory and a Notice to Redeliver was issued within 30 days after the lab report was issued. Customs stated in C.S.D. 89-100, citing 19 CFR 11.12b(c), that release of merchandise with the exception of the sample, does not infer that the examination has been completed or that admissibility of the merchandise has been determined. In C.S.D. 89-100, Customs found the Notice to Redeliver to have been timely under 19 CFR 141.113(a). In the instant case, as the Notice to Redeliver was issued within 30 days after the lab report was issued, the Notice to Redeliver was timely issued under 19 CFR 141.113(a).

However, with respect to the bond provisions, we find that the Notice to Redeliver was not timely issued in accordance with 19 CFR 113.62(d). In C.S.D. 90-99, Customs stated that 19 CFR 113.62 prevents Customs from enforcing a demand for redelivery issued over 30 days after the date the merchandise was released unless a conditional release period is established. In this case, the merchandise was released on January 2, 1996, and the Notice to Redeliver was not issued within 30 days. No conditional release period was established by any action of Customs subsequent to the release of the merchandise. In C.S.D. 90-99 we stated that the beginning of a conditional release period is the date a CF 28 is issued to the importer, and the end of the conditional release period is the date Customs receives the sample. As the sample of the merchandise was obtained by Customs on December 20, 1995, prior to the release of the merchandise, even if such action did constitute the end of a conditional release period, the Notice to Redeliver was not issued within 30 days of that date.

We note that in Treasury Decision ("T.D.") 94-95, Customs amended the Customs Regulations to establish a conditional release period of 180 days on entries of textiles and textile products for the sole purpose of facilitating a determination as to whether the country of origin of the entered goods has been accurately represented to Customs. This amendment will permit Customs to issue Notices of Redelivery to importers of textiles and textile products within 30 days after the end of the conditional release if investigation or information reveals that the merchandise was claimed to originate in a country where little or no manufacturing process occurred in order to avoid quota or visa admissibility requirements. The effective date of this amendment was January 3, 1995. This amendment is inapplicable to the subject entry, as the amended provisions apply only to issues of country of origin.

HOLDING:

The Notice to Redeliver was not timely issued in this case.

Consistent with the decision set forth above, you are hereby directed to grant the subject protest. 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 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, Freedom of Information Act and other public access channels.

Sincerely,

Director,

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