HQ 225319: Application for Further Review of Protest No. 1001-94-101263;Notice of Redelivery; Timeliness; Samples; 19 CFR 141.113(b)

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                           HQ 225319
                                
                         July 26, 1994

BON-2-CO:R:C:E 225319 SLR

CATEGORY: Liquidation

Regional Commissioner of Customs
c/o Protest and Control Section 
6 World Trade Center, Room 762
New York, New York 10048-0945

RE: Application for Further Review of Protest No. 1001-94-101263;
Notice of Redelivery; Timeliness; Samples; 19 CFR 141.113(b)

Dear Sir:

    The above-referenced protest was forwarded to this office for
further review. We have considered the points raised and our
decision follows.

FACTS:

    Calvin Klein Industries, Inc., the protestant, imported
certain knit garments, style 400, that were made in Hong Kong.
The merchandise was entered on October 14, 1993, under subheading
6110.10.1020, Harmonized Tariff Schedule of the United States
Annotated (HTSUSA), which falls under visa category 446.

    On November 3, 1993, Customs issued a Customs Form (CF) 28 -
Request for Information - requesting a sample of style 400. A
sample was provided to Customs by the protestant on December 22,
1993. On January 7, 1994, the sample was sent with a CF 6431 to
the National Import Specialist. The national import specialist
returned the CF 6431 on February 2, 1994, confirming the fact
that the knit garments had been misclassified and that the
correct classification for the merchandise was subheading
6109.90.2035, HTSUSA, visa category 438. A Notice of Redelivery
(CF 4647) was issued on February 14, 1994.

    On February 18, 1994, the protestant filed the instant
protest, requesting further review. It maintains that the Notice
of Redelivery was untimely. The subject entry has not been
liquidated.

ISSUE:

    Whether the Notice of Redelivery was timely.

LAW AND ANALYSIS:

    Initially, we note that the protest, with application for
further review, was timely filed in accordance with 19 U.S.C.
1514 and 19 CFR Part 174. We also note that the decision to issue
a demand for redelivery is protestable under 19 U.S.C.
1514(a)(4).

    The Customs Regulations governing the above-stated issue are
found in 19 CFR 141.113 and 113.62. Paragraph (b) of section
141.113 provides as follows:

     If at any time after entry the district 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) of this section
     [relating to marking of certain merchandise], he shall
     promptly demand the return to Customs custody of any such
     merchandise which has been released. (Emphasis added.)

    Section 141.113(f) of the Customs Regulations (19 CFR
141.113(f)) states the following time limitation for demands for
the return of merchandise:

     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 of the Customs Regulations (19 CFR 113.62)
contains the basic importation and entry bond conditions.
Paragraph (d) of this provision provides as follows:

     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 224854 of July 6, 1994; HQ 224872 of
July 5, 1994). Customs is of the position that a Notice of
Redelivery must be "promptly" issued. "Promptly" means either:
(1) no later than 30 days after the date the merchandise is
released if there is no occurrence establishing a conditional
release period; or (2) if there is an occurrence establishing a
conditional release period (e.g., 19 CFR 151.11), no later than
30 days after the end of that period [e.g., if information or a
sample is requested, within 30 days from the date of receipt by
Customs of the information or sample] (HQ 951300 of October 7,
1992; HQ 223535 of September 21, 1992; and HQ 088904 of February
19, 1992). A notice of redelivery may never be issued after
liquidation becomes final (United States v. Utex International
Inc., 6 Fed. Cir. (T) 166 (1988)).

    Here, a conditional release period was established with the
issuance of the CF 28 on November 3, 1993. (This occurred within
30 days of the original release of the merchandise.) The
protestant forwarded the requested sample on December 22, 1993.
Customs had 30 days from receipt of the sample to issue a Notice
of Redelivery. The CF 4647, however, was issued on February 14,
1994. This was well beyond the 30-day time period. The Notice of
Redelivery was not issued "promptly"; therefore, it was untimely.

HOLDING:

    The Notice of Redelivery was not timely in this case. This
protest should be granted.

    In accordance with Section 3A(ll)(b) of Customs Directive 099
3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed by your office, 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 the
mailing of this 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 via the Customs
Rulings Module in ACS and the public via the Diskette
Subscription Service, Lexis, Freedom of Information Act and other
public access channels.

                              Sincerely,

                              John Durant, Director
                              Commercial Rulings Division