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HQ 225886

February 1, 1996

BON-2/PRO-2-02-RR:IT:EC 225886 AJS


CMC Director of Customs
U.S. Customs Service c/o Protest and Control Section
6 World Trade Center, Room 761
New York, NY 10048-0945

RE: Protest 1001-94-107866; Notice of Redelivery, 19 CFR 141.113; 19 CFR 113.62; HQ 224854; HQ 951300.

Dear Sir or Madame:

This is our decision in protest 1001-94-107866, dated November 14, 1994, concerning a demand for redelivery of imported ladies 100% cotton knitted undershorts.


The subject merchandise consisted of two entries. Entry number 523-xxxx288-6 consisted of boxer-style flannel garments, which arrived on July 24, 1994, and was submitted to Customs on July 25. The protestant had classified the subject boxers under subheading 6208.21.2010 of the Harmonized Tariff Schedule of the United States (HTSUS). This subheading identified the articles as women's cotton briefs and panties, requiring a visa quota category 352, and dutiable at 8.1% ad valorem.

On or about July 27, 1994, according to the Field National Import Specialists (FNIS) which handles Hong Kong-origin knitted wearing apparel, samples of the subject boxers were examined and determined to be woven apparel. Subsequently, it was determined that the garments were classifiable within subheading 6204.62.4055, HTSUS, which provides for women's outerwear/shorts, requiring a textile category 348 export license, dutiable at 17.7% ad valorem. Customs detained this entry and conveyed these developments to the protestant on or about July 28, 1994.

Entry number 523-xxxx683-8 also consisted of boxer-style flannel garments which arrived on July 28, 1994, and was submitted to Customs on July 29, 1994. These garments carried the same classification as the first entry.

On July 29, 1994, the protestant submitted further information to facilitate Custom's evaluation of the subject boxers. By affidavit, the FNIS, declared that on July 29th, it informed the protestant that entry number 523-xxxx288-6 was being released "conditionally", pending further review by the National Import Specialists (NIS), but that if an outerwear/shorts classification was confirmed, Customs would issue Notices to Redeliver on the basis that the protestant had failed to present the proper visa. The protestant denies that it was informed that its merchandise was being released conditionally pending further review.

On August 2, 1994, Customs examined the protestant's second entry. The date of entry and release of the subject entries was on or about August 2, 1994.

The protestant claims that no sample of the merchandise was requested after the date of release nor was there any other occurrence, to its knowledge, which established a conditional release period. On August 22, 1994, a Customs Form (CF) 28, Request for Information, was issued to the protestant for the subject entries. The CF 28 requested the protestant provide a manufacturer's invoice as well as information on royalties, a buying agent and commissions. On September 9, 1994, a CF 4647, Notice to Mark and/or Notice to Redeliver, was issued for each of the subject entries requesting the merchandise be brought into compliance concerning classification and visa requirements or returned to Customs custody within 30 days of this notice.


Whether the subject Notices of Redelivery were timely issued within the meaning of 19 CFR 113.62(d).


Initially, we note that the subject protest was timely filed pursuant to 19 U.S.C. 1514(c)(2)(B). The date of decision as to which protest is made is September 9, 1994, and the date of this protest is November 14, 1994. We also note that a demand for redelivery is protestable pursuant to 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 the 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 limitations 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:

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:

(1) 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).

Paragraph (e) of this provision also provides as follows:

If merchandise is released conditionally to the principal before its right of admission into the United States is determined, the principal, after notification, agrees to . . . do any other thing to the merchandise in order to comply with the law and regulations governing its admission into the United States within the time period set forth in the notification.

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 different conditional release period: or (2) if there is an occurrence establishing a different 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). 19 CFR 141.0a(i) states that released conditionally means any release from Customs Custody before liquidation. A notice of redelivery may never be issued after liquidation becomes final (United States v. Utex International Inc., 6 Fed. Cir. (T) 166 (1988)).

In this instance, the subject merchandise was released from Customs custody on or about August 2, 1994. For the first and lead entry, Customs claimed that it informed the protestant that this release was conditional pending further review by the NIS. The protestant disputes this claim. Assuming arguendo that the protestant is correct, Customs would have initially had 30 days from August 2 to issue a Notice of Redelivery. Requests for further information were made on August 22, 1994. These requests sought information for both entries (i.e., dated July 25 and July 29 respectively). These requests were made within 30 days from release of the merchandise on or about August 2, 1994. Customs view its verbal communication and requests for information as establishing a separate conditional release period apart from the initial period of 30 days from entry. As stated previously, this separate conditional release period would end 30 days from the receipt of the requested information. On September 9, Customs issued Notices of Redelivery for the subject entries apparently because the requested information was not received. Therefore, these notices were timely issued inasmuch as the conditional release period had not expired. Consequently, we need not decide the issue of whether Customs verbal communication to the protestant on July 29 established a conditional release period because such a period was clearly established on August 22 and Customs timely took action in relation to this period.


The protest is denied. The Notices of Redelivery were timely issued within the meaning of 19 CFR 113.62(d).

In accordance with Section 3A(11)(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 making 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, Freedom of Information Act and other public access channels.



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