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HQ 962866




February 25, 2000

CLA-2 RR:CR:TE 962866 RH

CATEGORY: CLASSIFICATION PROTEST

TARIFF NO.: 6205.90.4040

Port Director
U.S. Customs Service
6 World Trade Center, Room 761
New York, NY 10048-0945

Attn: Chief, Residual Liquidation and Protest Branch

RE: Protest No. 1001-98-104238; Notice to Redeliver; Timeliness

Dear Sir:

This is in reply to your memorandum dated April 30, 1999, concerning the Application for Further Review of Protest (AFR) 1001-98-104238, filed by the law firm of Givens and Associates, PLLC, on behalf of Celebration Trading, Inc.

FACTS:

The record reflects that on July 21, 1998, the protestant entered 1130 dozen men’s sherpa lined garments, style numbers 2026, 2027, 2028, 2030, and 2031, under subheading 6205.90.4040 of the Harmonized Tariff Schedule of the United States (HTSUS), as men’s or boys’ shirts. The merchandise was released from Customs custody on the same day. Garments entered under that tariff provision are dutiable at the rate of 2.9 percent ad valorem and require a textile visa for category 840.

On September 8, 1998, Customs issued a Notice of Action advising the protestant that the subject garments would be liquidated under subheading 6201.99.9060, HTSUS, as jackets, which would result in a rate advance. Garments entered under that tariff provision in 1998 are dutiable at the rate of 4.8 percent ad valorem and require a textile visa for category 834.

Customs also issued a Notice to Redeliver on September 8, 1998, with the following remarks: “Quota/Visa Violation. New Visa Required for Category 834 for 1130 doz.”

Thereafter, the protestant filed the instant AFR on October 16, 1998, against the Notice to Redeliver. The protest challenges both the timeliness of the notice and the correct classification of the garments for quota/visa purposes.

We also discovered through a telephone conversation with a member of your staff that Customs liquidated the entry at issue on May 7, 1999, and that a subsequent AFR was filed, number 1001-99-102577, against Customs classification of the garments under subheading 6201.99.9060, HTSUS. That protest has been suspended pending the decision in this case.

ISSUES:

Did Customs issue the Notice to Redeliver in a timely manner?

If so, was the Notice to Redeliver properly based on a quota/visa violation?

LAW AND ANAYLSIS:

Initially, we note that the protest, with AFR, was timely filed under the statutory and regulatory provisions for protests. 19 U.S.C. §1514 and 19 C.F.R. Part 174. We also note that the decision to issue a Notice to Redeliver is protestable under the Customs protest statute. 19 U.S.C. §1514(a)(4).

The Customs regulations governing the recall of merchandise are found in 19 C.F.R. §141.113 and §113.62. Paragraph (c) of section 141.113 reads:

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 and country of origin determinations], 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. Paragraph (d) of this provision states, in relevant part:

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 Headquarters Ruling Letter (HQ) 951300 dated August 3, 1993 and HQ 224712 dated January 11, 1994, we held that a Notice to Redeliver 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 the instant case, the Notice to Redeliver was issued on September 8, 1998, more than 30 days after release of the merchandise on July 21, 1998. Moreover, the record contains no documents establishing a conditional release period, and we verified this fact with the import specialist. Therefore, the Notice to Redeliver was not timely and it must be cancelled. Accordingly, the substantive issue whether the notice was properly based on a quota/visa violation [as a result of Customs classification of the merchandise under subheading 6201.99.9060, HTSUS], is moot.

As noted in the FACTS portion of this ruling, the entry in question was liquidated on May 7, 1999, after which the protestant timely filed another AFR, number 1001-99-102577, challenging Customs classification of the garments under subheading 6201.99.9060, HTSUS. This is a protestable decision under 19 U.S.C. §1514(a)(2) and (5).

Although AFR 1001-99-102577 is in suspended status and has not been forwarded to our office for review, you should be aware that we were recently advised by the Office of Assistant Chief Counsel, International Trade Division, that the same classification issue raised in that protest is currently pending in the Court of International Trade in the case of Capital Mercury Shirt Company v. United States, Civil Action No. 98-0200324. Section 177(b), Customs Regulations (19 CFR §177.7(b)) states, in pertinent part, that:

No ruling letter will be issued with respect to any issue which is pending before the United States Court of International Trade, the United States Court of Appeals for the Federal Circuit, or any court of appeal therefrom.

Accordingly, AFR 1001-99-102577 should remain in suspended status pending the court’s decision in Capital Mercury Shirt Company. Thereafter, the entries under AFR 1001-99-102577 should be reliquidated in accordance with the judgement order of the Court of International Trade, pursuant to 19 CFR §176.31.

HOLDING:

The protest should be GRANTED. The Notice to Redeliver was not timely in this case and must be cancelled.

In accordance with section 3A(11)(b) of Customs Directive Number 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries 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, and to the public on the Customs Home Page of the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division

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