HQ 114511 - Protest No. 5501-98-100091; Notice to Redeliver; Timeliness; Notice; - United States International Trade Commision Rulings

United States International Trade Commision Rulings And Harmonized Tariff Schedule

faqs.org Rulings By Number Rulings By Category Tariff Numbers

faqs.org > Rulings and Tariffs Home > Rulings By Number > 1999 HQ Rulings > HQ 114248 - HQ 114554 > HQ 114511

Previous Ruling Next Ruling
HQ 114511

October 30, 1998

ENT-1-07-RR:IT:EC 114511 GOB

CATEGORY: ENTRY

Port Director of Customs
P.O. Box 619050
Dallas/Fort Worth Airport, Texas 75261

RE: Protest No. 5501-98-100091; Notice to Redeliver; Timeliness; Notice;
Establishment of Conditional Release Period; 19 CFR 141.113; CSD 90-99;
Rulings 951300, 224712

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 Brunton International (the "protestant"). Our decision follows.

FACTS:

The case file reflects the following factual background. On March 5, 1998, the protestant imported the merchandise under consideration, cotton/rayon handloom chenille throws. The merchandise was examined by a Customs inspector, who pulled a sample of the merchandise and sent it to the Customs laboratory for analysis. The Customs laboratory received the sample on March 16, 1998 and issued its report on May 21, 1998. That report showed that the merchandise was not properly marked as to fiber content. A Notice to Redeliver the merchandise was issued on June 2, 1998.

Your office advises that it is the usual practice for a Customs inspector to place a copy of the sample receipt (CF 6423) in the carton which is examined. However, the inspector who examined the merchandise could not locate the sample book in which a copy of the receipt was also to be kept. Further, the invoice attached to the subject entry did not contain examination notes.

The essence of the protestant's claim is that: "... the timeliness of any redelivery request that is made by U.S. Customs beyond 30 days from the date of entry will depend upon whether U.S. Customs has properly created and given notice to the importer of any conditional release that might be applicable to the imported merchandise." It states that notice of a conditional release period was not provided to it.

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. 19 U.S.C. 1514 and 19 CFR Part 174. We also note that the decision to issue a Notice of Redelivery is protestable under the Customs protest statute. 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 (c) of section 141.113:

If at any time after entry the port 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) or (b) 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 (g) 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).

In Ruling 951300 dated August 3, 1993 and Ruling 224712 dated January 11, 1994, we stated that it was 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." [Emphasis in original.]

In C.S.D. 90-99, we stated:

For purposes of 19 CFR 113.62(d), we consider a request for a sample on a Customs Form (CF) 28, Request for Information, or other appropriate form issued by Customs no later than 30 days after the date the merchandise is released, to establish a conditional release period. The beginning of the conditional release period is the date the CF 28 is issued; the end of the conditional release period is the date Customs receives the sample. If it is determined that the sample is not legally marked, a demand for redelivery must be made no later than 30 days after the end of the conditional release period, i.e., 30 days after the receipt of the sample by Customs. [Emphasis in original.]

It is also Customs' position that, for the purpose of a Notice to Redeliver, Customs must provide notice to an importer with respect to the establishment of a conditional release period. The issuance of a CF 28 or other appropriate form (including a CF 6423 indicating that a sample has been taken) to the importer constitutes such notice.

The protestant states that no notice of the establishment of a conditional release period was provided to it. Counsel's memorandum in support of the protest states:

Our client and our clients' [sic] broker have indicated that no such sample ticket, CF 28 or any other conditional release notice was provided. It further is our understanding that in conversations between Darrell Sekin [the protestant's broker] and the Dallas Customs office, U.S. Customs similarly has no record of such notice being provided to the importer.

This claim would appear to be substantiated. There is no documentation in the file, nor is there an assertion that documentation exists, supportive of the fact that notice of the establishment of a conditional release period was provided to the protestant. For example, the file indicates that there is no record supporting the carrying out of the usual practice of placing a sample receipt (CF 6423) in the carton which was examined. See the second paragraph of the FACTS section of this ruling.

Accordingly, in the absence of evidence that notice was provided to the protestant with respect to the establishment of a conditional release period, we conclude that such notice was not provided.

Therefore, in the absence of such notice, we conclude that a valid conditional release period was not established. Consequently, the Notice to Redeliver was not timely. The Notice of Delivery was issued on June 2, 1998, at least two and one-half months after the taking of the sample. In the absence of the establishment of a valid conditional release period, the Notice to Redeliver would have had to be issued within 30 days after the date the merchandise was released.

HOLDING:

The Notice to Redeliver was not timely in this case. Accordingly, 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 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, the Freedom of Information Act and other public access channels.

Sincerely,

Jerry Laderberg
Chief,

Previous Ruling Next Ruling