HQ 223538

October 1, 1992

BON-2-CO:R:C:E 223538 SLR

CATEGORY: Protest

U.S. Customs

9901 Pacific Highway

Blaine, WA 98230

Attn: Protest Reviewer

RE: Decision on Application for Further Protest Review

No. 3004-91-000197; Timeliness of Notice of Redelivery;

\"Calcium Sand\"; Coral; Heading 0508, Harmonized Tariff

Schedule of the United States Annotated (HTSUSA)

Dear Sir:

The above-referenced protest was forwarded to our office for

further review. We have considered the facts and issues raised.

Our decision follows.

FACTS:

On July 12, 1991, the protestant entered a product invoiced

as \"BC Calcium Sand.\" Due to the protestant\'s classification of

the product, the entry was placed on bypass. Consequently, no

samples were taken prior to the shipment\'s immediate release.

On September 3, 1991, Customs issued a notice of redelivery

for the July 12, 1991 entered merchandise. Evidently, Customs

laboratory analysis of samples taken from a July 6, 1991, entry

of the same merchandise had revealed that \"BC Calcium Sand\"

contained pieces of coral which are prohibited from entry into

the United States under applicable Fish and Wildlife laws.

The protestant currently challenges Customs September 3,

1991, notice of redelivery. The protestant maintains that the

notice should be cancelled as it was issued beyond thirty days

of the product\'s release. The entry in question has not been

liquidated.

ISSUES:

I. Was the notice of redelivery timely issued?

II\. For liquidation purposes, what is the proper

classification of the \"calcium sand\"?

-2-

LAW AND ANALYSIS:

ISSUE I

Was the notice of redelivery timely issued?

The Customs Regulations governing this issue are found in

19 CFR 141.113 and 113.62. Under paragraph (b) of section

141.113:

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 various marking and labeling

requirements\], he shall promptly demand the

return to Customs custody of any such merchandise

which has been released.

Paragraph (f) 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 has become final.

Section 113.62 contains the basic importation and entry bond

conditions. Under paragraph (c) of this provision:

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).

Our interpretation of these provisions is that a notice of

redelivery must be \"promptly\" issued, that is, it must be issued

either: (1) no later than 30 days after the date the merchandise

is released if there is no occurrence establishing an additional

release period; or (2) if there is an occurrence establishing an

additional release period, no later than 30 days after the end of

that period (see Customs Service Decision (C.S.D.) 86-21).

A notice or redelivery may never be issued after liquidation

becomes final (United States v. Utex International Inc., 6 Fed.

Cir. (T) 166 (1988)).

-3-

For the July 12, 1991, entry, there was no \"occurrence\"

establishing an additional release period \-- after all, the entry

was on bypass. Samples were taken from the July 9, 1991, entry;

however, it is a basic tenet of Customs law that each entry

stands alone. Consequently, the release of the July 12, 1991,

entry is controlled by the first clause of 19 CFR 113.62(c).

The September 3, 1991, notice of redelivery was issued more

than 30 days after the release of the subject merchandise. The

notice of redelivery, therefore, was not \"promptly\" issued.

Accordingly, this protest must be granted.

ISSUE II

For liquidation purposes, what is the proper classification

of the \"calcium sand\"?

The General Rules of Interpretation (GRI\'s) taken in their

appropriate order provide a framework for classification of

merchandise under the HTSUSA. The majority of imported goods are

classified by application of GRI 1, that is, according to the

terms of the headings of the tariff schedule and any relative

section or chapter notes. The Explanatory Notes (EN\'s) to the

Harmonized Commodity Description and Coding System, which

represent the official interpretation of the tariff at the

international level, facilitate classification under the HTSUSA

by offering guidance in understanding the scope of the headings

and GRI\'s.

Heading 2505, HTSUSA, provides for natural sands of all

kinds, whether or not colored. The EN\'s to 2505 indicate that

the heading includes:

\...all natural sea, lake, river or quarry sand (i.e.,

sand in the form of more or less fine particles

resulting from the natural disintegration of minerals),

but excludes sands and powders obtained artificially,

for example, by crushing (classified in heading 25.17

or in the heading for the rock concerned).

On the other hand, heading 0508, HTSUSA, provides for coral

and similar materials, unworked or simply prepared; shells of

molluscs, crustaceans or echinoderms and cuttlebone, unworked or

simply prepared.

The importer contends that the subject merchandise is

purchased, in the Philippines, under the name biolastic

limestone, is exported to Canada where it is graded and treated

with chemicals to kill bacteria, and then, as a manufactured

product, is exported to the United States and sold as calcium

sand.

-4-

The merchandise does not consist of fine particles, as is

characteristic of sand, but rather consists of discernable pieces

of coral and shells. Moreover, from the information provided, it

appears the grading and chemical treatment of the coral and

shells, in Canada, is minor and merely amounts to a simple

preparation of the merchandise. This is indicative of

merchandise included in heading 0508.

HOLDING:

For liquidation purposes, the \"calcium sand\" is classifiable

in subheading 0508.00.0000, HTSUSA, as \"Coral and similar

materials, unworked or simply prepared but not otherwise worked;

shells of molluscs, crustaceans or echinoderms and cuttlebone,

unworked or simply prepared but not cut to shape, powder and

waste thereof.\" The column one rate of duty provides that the

merchandise is duty free.

Customs failed to issue the September 3, 1991, notice of

redelivery in a timely fashion. Consequently, you are instructed

to allow the protest in full. A copy of this decision should be

attached to the Customs Form 19 and mailed to the protestant as

part of the notice of action on the protest.

Sincerely,

John Durant, Director

Commercial Rulings Division