CA-2 RR: TO: TO 962141 SS
Category: Exclusion
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.
174.12(e)(2)
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.
Sincerely
John Durant, Director
Commercial Rulings Division