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 > 2005 HQ Rulings > HQ 967415 - HQ 967545 > HQ 967468

Previous Ruling Next Ruling
HQ 967468




January 13, 2005

CLA-2: RR:CR:TE 967468 SG

CATEGORY: CLASSIFICATION

TARIFF NO.: 6309.00.0010

Area Port Director
Customs and Border Protection
1000 Second Avenue, Suite 2100
Seattle, Washington 98104

RE: Application for Further Review of Protest 3001-04-100296

Dear Area Director:

This is in reply to your correspondence, dated November 9, 2004, forwarding Application for Further Review of Protest (AFR) 3001-04-100296, filed by Joel R. Junker & Associates, on behalf of Buffalo Industries, Inc.

FACTS:

The protest is against Customs and Border Protection’s (CBP) demand for redelivery of three entries of merchandise.

Protestant made three entries of merchandise (one on July 21, 2004, and two on August 5, 2004) which were entered as worn clothing under subheading 6309.00.0010, Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

On September 17, 2004, CBP issued notices to redeliver the three shipments of merchandise within 30 days stating that the goods were misclassified, correct duties were not paid and quota/visa requirements had not been met, based upon an examination of similar merchandise classified under the same tariff provision. The "Statute(s)/Regulation(s) Violated" portion of each notice referenced 19 C.F.R. 141.113 (two of the notices specifically referenced 141.113(b)). On October 15, 2004, protestant filed the instant protest and application for further review (AFR) protesting the three demands for redelivery. Protestant’s AFR request was approved. The protest was timely filed pursuant to 19 U.S.C. 1514 (c)(3) and 19 C.F.R. 174.12 (e)(1).

In support of protestant’s application for further review, protestant alleges that redelivery of the aforementioned shipments is not required because the Notices to Redeliver were not issued within the 30-day period after the entry and release of the merchandise as required by the CBP regulations. Further review is warranted pursuant to 19 CFR §§174.24(a) and 174.25.

ISSUE: Whether the issuance of the redelivery notices was proper and timely.

LAW AND ANALYSIS:

The Customs Regulations governing the recall of textiles and textile products released from CBP custody are found in 19 C.F.R. §141.113. Paragraph (b) of section 141.113 provides as follows:

For purposes of determining whether the country of origin of textiles and textile products subject to the provisions of §12.130 of this chapter has been accurately represented to Customs, the release from Customs custody of any such textile or textile product shall be deemed conditional during the 180-day period following the date of release. If the port director finds during the conditional release period that a textile or textile product is not entitled to admission into the commerce of the United States because the country of origin of the textile or textile product was not accurately represented to Customs, he shall promptly demand its return to Customs custody. Notwithstanding the provisions of paragraph (h) of this section and §113.62(l)(1) of this chapter, a failure to comply with a demand for return to Customs custody made under this paragraph shall result in the assessment of liquidated damages equal to the value of the merchandise involved.

The background information on section 141.113(b), published in T.D. 94-95, Customs Bulletin, Vol. 28, No. 50, December 14, 1994, makes clear that the regulation was adopted because of a significant enforcement problem regarding textiles and textile products that are imported into the United States in violation of quota restrictions or without the appropriate visa from the country of origin. Prior to the enactment of section 141.113, CBP was required to issue a Notice of Redelivery within 30 days of the release of the merchandise from CBP’s custody. See Headquarters Ruling Letter (HQ) 226089, dated February 9, 1996. However, most violations were not discovered until after the close of the time period for issuance of a Notice of Redelivery. See HQ 226089 (cited above) and T.D. 94-95 (cited above). Accordingly, the 180-day conditional release period was specifically implemented to provide CBP with an opportunity to verify that country of origin claims are "accurately" represented to CBP. It was not intended to apply the extended period to matters involving tariff classification.

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 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 Notices to Redeliver were issued on September 17, 2004, more than 30 days after release of the merchandise entered on July 21, 2004, and August 5, 2004. Moreover, the record contains no documents establishing a conditional release period, and we verified this fact with the import specialist. The mere reference to 19 CFR 141.113(b) in the "Statute(s)/Regulation(s) Violated" portion of the Notice is not sufficient to effect a 180-day conditional release period when there is no indication from the face of the Notice that the issue at hand is the country of origin of the subject merchandise or the manufacturing processes which occur in the claimed country of origin of the merchandise. Accordingly, the instant case falls outside the purview of 19 C.F.R. §141.113(b). Therefore, we conclude that the Notices to Redeliver were not timely and they must be cancelled.

HOLDING:

The claim of the Protestant that the Notices to Redeliver were not timely is valid and the protest should be ALLOWED.

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 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 the decision. No later than sixty days from the date of this 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.cpb.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director

Previous Ruling Next Ruling

See also: