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HQ 115941

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May 15, 2003

RR:IT:EC 115941 GG

CATEGORY: ENTRY

Area Director, JFK International Airport Area Attn: Chief, Liquidation and Protest Branch Bureau of Customs and Border Protection
Building 77, JFK International Airport
Jamaica, New York 11430

RE: Protest and Application for Further Review; Protest No. 1001-00-102366; Requests for Redelivery Untimely.

Dear Sir:

This is in response to your memorandum dated March 13, 2003, which forwarded the above-referenced protest and application for further review. The protestant, Smiles Fashion Corp. (“Smiles”), protests the decision of the Bureau of Customs and Border Protection (“CBP”) to demand redelivery of several shipments of its merchandise.

FACTS:

Smiles made three entries of women’s ankle length outerwear garments with matching scarves. They were entered as Chola and Dupatta India folklore items, which are free from quota and visa requirements. CBP questioned the classification of the merchandise and issued Customs Form (“CF”) 28 Requests for Information demanding samples and descriptive literature. The protestant timely submitted the samples and indicated in writing that no descriptive literature was available. A chronology of these events is as follows:

Entry No. Entry Date Sample Requested Sample Supplied

073/00666XX-X 12/20/99 01/12/00 02/02/00
073/00668XX-X 01/27/00 02/11/00 03/08/00
073/00669XX-X 01/26/00 02/11/00 03/08/00

CBP also issued an additional CF 28 on February 11, 2000, which was attributed to entry number 073-00666XX-X in Block 5 but noted that “[p]ending on entry # 073-00669XX-X and 073-00668XX-X (descriptive literature and catalogues). . . The samples are going to be sent to national import specialist to determine classification and to determine if the items are traditional folk lore exempt from quota.”

The samples were sent to the National Commodity Specialist on April 5, 2000, together with descriptive literature and catalogues, which evidently had been located. A determination that the articles were not folklore items was received via the Automated Commercial System (“ACS”) on April 17, 2000. As a result of this determination, CBP issued CF 4647 Notices to Redeliver on April 25, 2000, which demanded redelivery by May 25, 2000. On May 12, 2000, counsel for Smiles responded to the CF 4647’s in writing, claiming that they were untimely and should be withdrawn. This letter was followed up with the filing of the subject protest and application for further review on May 25, 2000. In addition, CBP issued Notices of Penalty or Liquidated Damages Incurred and Demand for Payment on June 7, 2000.

ISSUE:

Whether the redelivery demands were made in a timely manner.

LAW AND ANALYSIS:

Initially, we note that a demand for redelivery is a protestable matter pursuant to 19 U.S.C. § 1514(a)(4). In addition, the subject protest was timely filed in accordance with 19 U.S.C. § 1514(c)(3)(B).

Section 113.62 of the Customs Regulations (19 CFR § 113.62) contains the basic importation and entry bond conditions. Paragraph (d) of this section provides the following:

If merchandise is released conditionally from Customs custody to the principal before its right of admission into the United States is determined, the principal agrees to redeliver timely, on demand by Customs, the merchandise released if it:

Fails to comply with the laws or regulations governing admission into the United States;

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 90-99, CBP stated that 19 CFR § 113.62(d) prevents it from enforcing a demand for redelivery issued over 30 days after the date that the merchandise was released unless a conditional release period is established. In addition, a request for a sample on a CF 28 made no later than 30 days after release of the merchandise establishes a conditional release period. The beginning of the conditional release period is the date the CF 28 is issued, and the end of the conditional release period is the date CBP receives the sample. A demand for redelivery must be made no later than 30 days after the sample is received. See also, United States v. So’s USA Co., 23 CIT 605, 610 (1999); Headquarters Ruling Letter (HQ) 114693, dated December 10, 1999; HQ 225886, dated February 1, 1996; and HQ 225319, dated July 26, 1994.

For the subject merchandise, conditional release periods were established on January 12, 2000, and again on February 11, 2000, when CBP requested samples. The conditional release period for the merchandise that is the subject of Entry No. 073/00666XX-X ended on February 2, 2002, when a sample was supplied. Similarly, the conditional release period for the merchandise pertaining to the other two entries ended on March 8, 2000, when CBP received the requested samples. CBP had 30 days from each of those dates to demand redelivery of the respective merchandise. The CF 4647 redelivery demands were issued on April 25, 2000, well beyond the 30-day allowable period. Consequently, the demands for redelivery were not timely and are unenforceable.

HOLDING:

The Notices of Redelivery were not timely issued in this case. The protest should be GRANTED.

Sincerely,

Glen E. Vereb
Chief

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