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HQ 967189




October 22, 2004

CLA-2 RR:CR:TE 967189 TMF

CATEGORY: CLASSIFICATION

TARIFF NO.: 6204.63.3510

Port Director
Customs and Border Protection
2nd and Chestnut Streets
Philadelphia, PA 19106-2999

RE: Application for Further Review of Protest #1101-04-100208; Notice of Redelivery for ladies/girls polyester woven pants and skirts

Dear Sir or Madame:

This is in reply to your correspondence forwarding Application for Further Review of Protest (AFR) 1101-04-100208, filed by the law firm of Sharretts, Paley, Carter & Blauvelt, P.C. on behalf of their client, Leonard A. Feinberg, Inc.

FACTS:

The protest and request for Application for Further Review (hereinafter “AFR”), which was timely filed on July 12, 2004 is against Customs and Border Protection’s (CBP) demand for the protestant to redeliver 1547 dozen women’s/girls’ polyester woven pants and skirts.

The goods at issue were originally entered December 14, 2003. In a Notice of Action dated December 19, 2003, CBP excluded certain merchandise, identified as style numbers 6516-2-6-1/2, 65162, 7008-2-6-1/2, 70082, 6418-2-6-1/3, 64182, 70102, 7010-2-6-1/2, from entry on the basis that the overseas factory which manufactured the goods was closed and no longer doing business.

On January 12, 2004, Barthco, the customs broker for the protestant, responded to CBP’s exclusion by offering production and shipping documents to CBP. In these documents, counsel for the protestant asserts that the broker, Barthco, stated that the goods were made prior to the factory closure on November 1 and were subsequently transferred for storage at a warehouse for further consolidation with other merchandise for future shipment in one container.

According to counsel for the protestant, on January 13, 2004, the entry that contained some of the excluded merchandise was cancelled. On the same day, CBP ordered an “Intensive Examination” and issued a Request for Information (CF 28) that indicated a conditional release period would be granted until lab analysis to determine water resistance of the goods was completed.

On January 26, 2004, CBP permitted the merchandise to be transferred and a warehouse entry for storage of the merchandise was made. On January 29, 2004, the warehouse withdrawal for consumption entry of 724 cartons of ladies pants and skirts was made.

On April 30, 2004, the lab results were issued and determined that the goods were not water resistant. CBP then issued a Notice of Action for a Rate Advance, which reclassified the goods to subheading 6204.63.3510, HTSUSA, dutiable at 28.6 percent ad valorem. On June 18, 2004, CBP issued the Notice of Redelivery against the January 29, 2004 entry, which is the subject of the instant AFR.

ISSUE:

Whether the Notice of Redelivery was untimely?

LAW AND ANALYSIS:

The protest with AFR was timely filed under the statutory and regulatory provisions for protests. See 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. See 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).

We note that Section 141.113(b) establishes a conditional release period of 180 days for purposes of determining whether the country of origin of textiles and textile products have been adequately represented to CBP.

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 CBP 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 June 18, 2004, more than 30 days after the end of the conditional release period. The record establishes an end date for the conditional release period, April 30, 2004, which was the date of the return of the lab analysis for water resistance of the merchandise. We find the Notice to Redeliver was not timely and it must be cancelled.

HOLDING:

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

In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together with the Customs Form 19, to the counsel for 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 make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles Harmon, Director
Commercial Rulings Division

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