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HQ W968383




March 2, 2007

CLA-2 RR:CTF:TCM W968383 HkP

CATEGORY: CLASSIFICATION

TARIFF NO.: n/a

Port Director
Port of New York/Newark
U.S. Customs and Border Protection
1100 Raymond Boulevard
Newark, NJ 07102

RE: Application for Further Review of Protest No. 4601-05-102639; timeliness of Notice to Redeliver merchandise

Dear Port Director:

This is our decision regarding the Application for Further Review (“AFR”) of Protest No. 4601-05-102639, timely filed by counsel on behalf of Age Group Ltd., concerning the classification of merchandise and the timeliness of a Notice to Redeliver merchandise. As an initial matter, we note that U.S. Customs and Border Protection (“CBP”) was advised by counsel on January 9, 2007, that Protestant no longer disputes the classification of the merchandise that is the subject of the Protest. Therefore, the only issue under consideration in this decision is the timeliness of the Notice to Redeliver.

FACTS:

The protest at issue is against CBP’s Notice to Redeliver one entry of knit pajama tops, which CBP classified under subheading 6114.20.0010 of the Harmonized Tariff Schedule of the United States (“HTSUS”).

On July 19, 2005, Protestant entered the subject merchandise in subheading 6108.91.0030, HTSUS. It was released from CBP custody on that same date. CBP issued a Notice to Redeliver on October 21, 2005, advising that the correct classification of the merchandise was in subheading 6114.20.0010, HTSUS, falling within textile category 339 and subject to China safeguards. The Notice also advised that category 339 was closed and that the merchandise had to be redelivered to CBP for seizure purposes.

On November 28, 2005, counsel for Protestant filed a Protest and AFR challenging the Notice of Redelivery as untimely and based on an erroneous classification. The AFR request was denied on December 23, 2005, on the basis that the Notice of Redelivery was timely and that the issue of timeliness under 19 C.F.R. §141.113(b) had already been addressed in Essex Manufacturing v. United States, 264 F. Supp. 2d 1285. CBP set aside the denial of the Protest and AFR in Headquarters Ruling Letter (“HQ”) 968040, dated February 28, 2006.

LAW AND ANALYSIS:

Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a)(4) as a decision on the demand for redelivery of merchandise to CBP custody. The protest was timely filed, within ninety days of liquidation of the first entry for entries made before December 18, 2004, and within 180 days of liquidation of the first entry for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).

Further Review of Protest No. 4601-05-102639 was properly accorded to protestant pursuant to 19 C.F.R. § 174.24 because the decision against which the protest was filed involves matters previously ruled upon by the Commissioner of Customs or his designee or by the Customs courts but facts are alleged or legal arguments presented which were not considered at the time of the original ruling.

CBP Regulations governing the recall of merchandise are found in 19 C.F.R. §141.113 and §113.62. Section 141.113(c) provides:

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.

Section 141.113(g) provides: “[a] demand for the return of merchandise to Customs custody shall not be made after the liquidation of the entry covering such merchandise has 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).

The interpretation of these provisions has been thoroughly considered (see, e.g., HQ 227686, dated August 12, 1999; HQ 224584, dated July 6, 1994; HQ 224872, dated July 5, 1994). CBP is of the position that a Notice to Redeliver must be “promptly” issued. “Promptly” means either: 1) no later than thirty days after the date the merchandise is released, if there is no occurrence establishing a different conditional release period; or 2) if there is an occurrence establishing a different conditional release period (e.g., 19 C.F.R. 151.11), no later than thirty days after the end of that period (e.g., if information or a sample is requested, within thirty days from the date of receipt by CBP of the information or sample; see HQ 951300, dated October 7, 1992, HQ 223535, dated September 21, 1992, and HQ 088904, dated February 19, 1992). A redelivery notice may never be issued after liquidation becomes final. United States v. Utex International Inc., 857 F.2d 1408 (Fed. Cir. 1988).

We have previously held that a Notice to Redeliver is not timely when it is issued more than thirty days after the release of merchandise by CBP and no Request for Information (Customs Form 28) is issued or any other action taken to establish a conditional release period. See HQ 967189, dated October 22, 2004, HQ 951300, dated August 3, 1993, and HQ 224712, dated January 11, 1994. In the instant case, the Notice was issued on October 21, 2005, more than thirty days after the date the merchandise was released (July 19, 2005) and no conditional release period was established. As a result, we find that the Notice to Redeliver was untimely and must be cancelled.

HOLDING:

By application of 19 C.F.R. §141.113 and §113.62, we find that the Notice to Redeliver was not timely and must be cancelled. You are instructed to allow the protest with regard to the issue of timeliness of the Notice of Redelivery. Since the rate of duty is the same as the liquidated rate, you are instructed to deny the protest with regard to the issue of classification.

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 International Trade 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 B. Harmon, Director

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