Protest No. 1001-99-102857; Notice to Redeliver; Timeliness; Notice;Establishment of Conditional Release Period; 19 CFR 141.113

HQ 114819 October 8, 1999 ENT-1-07-RR:IT:EC 114819 GOB CATEGORY: Entry Port Director of Customs Attn.: Head, Protest and Control Section Six World Trade Center Room 761 New York, N.Y. 10048 RE: Protest No. 1001-99-102857; Notice to Redeliver; Timeliness; Notice; Establishment of Conditional Release Period; 19 CFR 141.113 Dear Sir: The above-referenced protest was forwarded to this office for further review. We have considered the evidence provided, and the points raised, by your office and Cerestar USA, Inc. (the “protestant”). Our decision follows. FACTS: The case file reflects that the subject merchandise, vital wheat gluten, was entered on June 5, 1998. The Notice to Redeliver was issued by Customs on March 18, 1999. ISSUE: Was the Notice to Redeliver timely in this case? LAW AND ANALYSIS: Initially, we note that the protest, with application for further review, was timely filed under the statutory and regulatory provisions for protests. 19 U.S.C. 1514(c)(3) and 19 CFR 174.12(e). We also note that the decision to issue a Notice of Redelivery is protestable pursuant to 19 U.S.C. 1514(a)(4). The Customs Regulations governing this issue are found in 19 CFR 141.113 and 113.62. Under paragraph (c) of section 141.113: 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], he shall promptly demand the return to Customs custody of any such merchandise which has been released. [Emphasis supplied.] Section 113.62 contains the basic importation and entry bond conditions. Under paragraph (d) 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). In Ruling 951300 dated August 3, 1993 and Ruling 224712 dated January 11, 1994, we stated that it was Customs’ position that “a Notice of Redelivery is not timely when it is issued more than 30 days after release of the merchandise by Customs and no Request for Information (Customs Form 28) is issued or any other action is taken to establish a different conditional release period.” [Emphasis in original.] It is also Customs’ position that, for the purpose of a Notice to Redeliver, Customs must provide notice to an importer with respect to the establishment of a conditional release period. The issuance of a CF 28 or other appropriate form (including a CF 6423 indicating that a sample has been taken) to the importer constitutes such notice. This position was stated in Ruling 114511 of October 30, 1998. There is no evidence to support a conclusion that a conditional release period was established. Accordingly, we find that a conditional release period was not established. Therefore, in the absence of a conditional release period, and on the basis of the above authorities (including 19 CFR 113.62 and 114.113(c)), we determine that the Notice to Redeliver was not timely because it was not issued within 30 days of the release of the merchandise. The fact that there may have been a quota on the subject merchandise at the time of entry and any assertion that incorrect information may have been provided by the protestant at the time of entry do not have a material effect on the issue here, i.e., the timeliness of the Notice to Redeliver. HOLDING: The Notice to Redeliver was not timely in this case. Accordingly, the protest is granted. 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 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 mailing of the 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, the Freedom of Information Act and other public access channels. Sincerely, Jerry Laderberg Chief, Entry Procedures and Carriers Branch