HQ 967189

October 22, 2004

CLA-2 RR:CR:TE 967189 TMF

CATEGORY: Classification

TARIFF NO.: 6204.63.3510

Port Director

Customs and Border Protection

2^nd^ and Chestnut Streets

Philadelphia, PA 19106-2999

**RE:** Application for Further Review of Protest #1101-04-100208;
Notice of Redelivery for ladies/girls polyester woven pants and skirts

Dear Sir or Madame:

This is in reply to your correspondence forwarding Application for
Further Review of Protest (AFR) 1101-04-100208, filed by the law firm of
Sharretts, Paley, Carter & Blauvelt, P.C. on behalf of their client,
Leonard A. Feinberg, Inc.

**FACTS:**

The protest and request for Application for Further Review
(*hereinafter* "AFR"), which was timely filed on July 12, 2004 is
against Customs and Border Protection's (CBP) demand for the protestant
to redeliver 1547 dozen women's/girls' polyester woven pants and skirts.

The goods at issue were originally entered December 14, 2003. In a
Notice of Action dated December 19, 2003, CBP excluded certain
merchandise, identified as style numbers 6516-2-6-1/2, 65162,
7008-2-6-1/2, 70082, 6418-2-6-1/3, 64182, 70102, 7010-2-6-1/2, from
entry on the basis that the overseas factory which manufactured the
goods was closed and no longer doing business.

On January 12, 2004, Barthco, the customs broker for the protestant,
responded to CBP's exclusion by offering production and shipping
documents to CBP. In these documents, counsel for the protestant asserts
that the broker, Barthco, stated that the goods were made prior to the
factory closure on November 1 and were subsequently transferred for
storage at a warehouse for further consolidation with other merchandise
for future shipment in one container.

According to counsel for the protestant, on January 13, 2004, the entry
that contained some of the excluded merchandise was cancelled. On the
same day, CBP ordered an "Intensive Examination" and issued a Request
for Information (CF 28) that indicated a conditional release period
would be granted until lab analysis to determine water resistance of the
goods was completed.

On January 26, 2004, CBP permitted the merchandise to be transferred and
a warehouse entry for storage of the merchandise was made. On January
29, 2004, the warehouse withdrawal for consumption entry of 724 cartons
of ladies pants and skirts was made.

On April 30, 2004, the lab results were issued and determined that the
goods were not water resistant. CBP then issued a Notice of Action for a
Rate Advance, which reclassified the goods to subheading 6204.63.3510,
HTSUSA, dutiable at 28.6 percent *ad valorem.* On June 18, 2004, CBP
issued the Notice of Redelivery against the January 29, 2004 entry,
which is the subject of the instant AFR.

**ISSUE**:

Whether the Notice of Redelivery was untimely?

**LAW AND ANALYSIS**:

The protest with AFR was timely filed under the statutory and regulatory
provisions for protests. *See* 19 U.S.C. §1514 and 19 C.F.R. Part 174.
We also note that the decision to issue a Notice to Redeliver is
protestable under the Customs protest statute. *See* 19 U.S.C.
§1514(a)(4).

      The Customs regulations governing the recall of merchandise are
found in 19 C.F.R. §141.113 and §113.62. 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).
>
> We note that Section 141.113(b) establishes a conditional release
> period of 180 days for purposes of determining whether the country of
> origin of textiles and textile products have been adequately
> represented to CBP.
>
> In Headquarters Ruling Letter (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 Notice to Redeliver was issued on June 18,
> 2004, more than 30 days after the end of the conditional release
> period. The record establishes an end date for the conditional release
> period, April 30, 2004, which was the date of the return of the lab
> analysis for water resistance of the merchandise. We find the Notice
> to Redeliver was not timely and it must be cancelled.
>
> **HOLDING:\
> **
>
> The protest should be ALLOWED. The Notice to Redeliver was not timely
> in this case and must be cancelled.

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 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.cbp.gov, by means of the Freedom of Information Act, and
other methods of public distribution.

> Sincerely,
>
> Myles Harmon, Director
>
> Commercial Rulings Division