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HQ 962141

September 24, 1998

CA-2 RR: TO: TO 962141 SS


Jason P. Ahern, Port Director
Miami Service Port
P.O. Box 025280
6601 NW 25th Street, Room 0272
Miami, FL 33102

RE: Exclusion; Protest No. 5201-98-100355; Application for Further Review; 19 U.S.C. 1499(c)(5)(A); 19 U.S.C. 1514; 19 C.F.R.

Dear Sir:

This is in response to the Application for Further Review of Protest Number 5201-98-100355 filed on behalf of the importer, SDS Sportswear Ltd. ( Protestant"), contesting the exclusion under section 499, Tariff Act of 1930, as amended (19 U.S.C. 1499) of boys cotton woven shorts which this office received for review on August 18, 1998.

Protestant attempted to enter a shipment of boys cotton woven shorts. The merchandise was presented for customs examination on March 17, 1998. Protestant claimed El Salvador as the country of origin. An examination of the merchandise revealed country of origin labels sewn into the garments which appeared to have been affixed to the garments after production. Furthermore, Customs noted evidence of previously sewn-in textile labels that had been partially removed. Customs issued a Notice of Detention and Request for Information on March 19, 1998, in order to determine admissibility. By operation of law, the merchandise was deemed to be excluded on April 17, 1998.

19 U.S.C. 1499(c)(5)(A) mandates that Customs exclude or release detained merchandise within thirty days after the merchandise has been presented for customs examination. 19 U.S.C. 1499(c)(5)(A) states in relevant part:
(5) Effect of failure to make determination

(A) The failure by the Customs Service to make a final determination with respect to the admissibility of detained merchandise within 30 days after the merchandise has been presented for customs examination, or such longer period if specifically authorized by law, shall be treated as a decision of the Customs Service to exclude the merchandise for the purposes of section 1514(a)(4) of this title.
The admissibility of the merchandise should have been determined by April 16, 1998. Since Customs did not make a final determination with respect to the admissibility of the detained merchandise within 30 days, the merchandise was deemed excluded on April 17, 1998 (i.e., 31 days after the merchandise was presented for customs examination).

Since the "deemed exclusion" provision of Section 1499 specifically refers to Section 1514(a)(4), which deals with the finality of decisions and ability to protest, it is Customs position the date of the deemed exclusion is the trigger date that starts the running of the time period for filing a protest. 19 U.S.C. 1514 requires that a protest be filed within ninety days of the date of the decision which is being protested. The importer is protesting the deemed exclusion which occurred on April 17, 1998. The ninety day time limit would have expired on July 16, 1998. Protestant did not file its Protest and Application for Further Review until July 17, 1998. Accordingly, under 19 U.S.C. 1514 the Protest was not timely filed.

On April 20, 1998, after the deemed exclusion, the Port issued a Notice of Action which excluded the merchandise from entry due to lack of sufficient documentation submitted to support the country of origin. 19 C.F.R. 174.12(e)(2) states that a protest shall be filed within 90 days after "the date of written notice excluding merchandise from entry or delivery under any provision of the Customs laws." However, it is Customs' position that the action by the port merely served to advise the importer of the actual reasons for the exclusion of the merchandise and did not serve to extend the deadline for filing of a protest. Having invoked the provisions of section 499, the importer or its agent is presumed to be aware of the results of Customs failure to issue a decision within the statutory time frame.

In accordance with section #A(11)(b) of Customs Directive Number 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be on or attached to the Customs form 19, Notice of Action, and furnished to the Protestant no later than 60 days from the date of this letter. Sixty days from the date of the decision (On that date) the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Ruling Module in ACS and to the public via the Diskette Subscription Service, Freedom of Information Act, and other public access channels.

19 C.F.R. Part 174 presently advises that any person whose protest has been denied may contest the denial by filing a civil action in the CIT within 180 days after the date of mailing of notice of denial. Accordingly, Customs should retain custody of the merchandise at least until the 180 day summons period has passed (assuming the importer does not export the merchandise). If a civil action is filed, Customs should continue to retain custody of the merchandise until further order of the court since the court has the power to order the cancellation of the detention and release of the merchandise.

Lastly, it is Headquarters belief that this case does not present facts warranting review by the Office of Regulations and Rulings. Accordingly, it does not meet the criteria required under 19 C.F.R. 174.24 for approval of applications for further review. In future exclusion cases involving similar facts where the adequacy of documentation submitted for establishing country of origin is at issue, the Port should contact Dr. James R. Dorsett (202) 927-7002 of the Office of Field Operations before approving the application for further review.

Any questions regarding the foregoing may be directed to Shari Suzuki of my staff at (202) 927-2339.


John Durant, Director
Commercial Rulings Division

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