CLA-2 RR:CR:TE 961551 SS
Category: Exclusion
Port Director
U.S. Customs Service
6747 Engle Road
Middleburg, OH 44130
Re: Exclusion; Protest No. 4103-97-100373; Erroneous Denial of
Application for Further Review, 19 U.S.C. 1515(c); Denial Contrary
to Proper Instructions, 19 U.S.C. 1515 (d)
Dear Sir:
It has been brought to Headquarters attention that the above
referenced protest was denied a second time by your office on
October 8, 1998. In our letter to you of September 9, 1998, you
were directed to contact and coordinate the review of this matter
with the Headquarters Office of Field Operations prior to issuing
a decision. This was not accomplished. Accordingly, under the
authority of 19 U.S.C. 1515(d), relating to denial contrary to
proper instruction the protest denial of October 8, 1998, is
voided. The background of this protest follows.
Protest Number 4103-97-100373 was filed on behalf of the
importer, Lane Bryant, Inc., contesting an exclusion under section
499, Tariff Act of 1930, as amended (19 U.S.C. 1499). The
successor in interest to Lane Bryant is Junior Gallery/Gallery
Woman (hereinafter "Protestant"). Protestant attempted to enter a
shipment of Five Thousand Two Hundred Fifty Seven (5257) womens
woven anoraks. Customs issued a Notice of Detention and Request
for Information on November 24, 1997, in order to determine
admissibility. Due to lack of sufficient documentation submitted
to support the country of origin, Customs issued a Notice of Action
which excluded the merchandise from entry on December 2, 1997. On
December 23, 1997, Protestant filed its Protest and Application for
Further Review (AFR). Your office denied the Protest and AFR on
January 22, 1998. Pursuant to the request of the Protestant under
19 U.S.C. 1515(c), Headquarters set aside the denial of the
application for further review and voided the denial of the protest
on May 12, 1998.
In our letter to you of September 9, 1998, we stated that the
action taken under 19 U.S.C. 1515(c) removed the matter from the
time constraints of 19 U.S.C. 1499. Furthermore, upon review of
the extensive factual nature of the dispute, further submissions
and meetings with both counsel and representatives of the importer,
we took the position that the protest did not meet the criteria
required under 19 C.F.R. 174.24 for approval of applications for
further review for review by the Office of Regulations and Rulings.
That decision did not mean that Headquarters divested itself of
all jurisdiction in this matter. In returning this protest to the
Port, the Port was directed to contact Dr. James R. Dorsett of the
Office of Field Operations in order to coordinate the review of
this matter prior to issuing a decision. The Headquarters Office
of Field Operations has a substantial interest in country of origin
exclusion determinations. It was for this reason your port was
requested to contact the Office of Field Operations before issuing
the CF19, Notice of Action. The purpose of that contact was to
receive the input of your office along with the input of several
other offices before a final decision was made and to ensure
consistent treatment at all ports.
Based upon contacts with your staff, it appears that there is
reluctance to grant the protest on the basis that your office has
not been provided with the same information that Headquarters
possessed. A review of the file indicates that the supplemental
submission received by this office from counsel was faxed to Gary
Geoffrion, of your staff, on July 17, 1998. Although you have not
had the benefit of the explanation Headquarters received at the
oral conference of the correlation between the payroll documents
and the individual workers tickets produced, it is noted that the
records are attached as Exhibit 4 to the Protest and it is our
understanding that the importer and its counsel has attempted to
arrange a meeting with you to provide an explanation of the
documents as presented to Headquarters. Be that as it may, it is
time to bring closure to this matter and reach a conclusion. In
light of all the facts and circumstances, Headquarters has
proceeded to review the matter.
Based upon a review of all the documentation of record and
consultations with and between the Office of Regulations and
Rulings, the Office of Field Operations, the Office of Strategic
Trade, and your office, it has been determined that the country of
origin is as claimed by the Protestant. Your office was the only
dissent with respect to this conclusion. Accordingly, it has been
determined that the protest should be approved and the merchandise
should be released. In accordance with Section #A1 of Customs
Directive Number 099 3559-065, dated August 4, 1993, Subject:
Revised Protest Directive, this decision should be immediately
communicated to Protestant on the CF19, Notice of Action.
Any questions regarding the factual basis for the foregoing
may be directed to Dr. James Dorsett (202) 927-7002 of the Office
of Field Operations or Shari Suzuki of my staff at (202) 927-2339.
Any questions regarding the voiding of the protest denial by your
office should be directed to John Elkins, Chief, Textile Branch,
Office of Regulations and Rulings. Any questions regarding the
decision to grant this protest should be directed to Phil Metzger,
Director, Office of Trade Compliance, Office of Field Operations.
Sincerely,
John Durant, Director
Commercial Rulings Division