OT:RR:BSTC:EOE H323683 JW
Mr. James Snider
Assistant Center Director, Apparel, Footwear & Textiles Center
U.S. Customs and Border Protection
VIA EMAIL: [email protected]
RE: Request for Internal Advice on Protest No. 3002-21-103869; U.S. International Trade Commission; General Exclusion Order; Investigation No. 337-TA-567, Certain Foam Footwear
Dear Mr. Snider:
This letter is in response to your request for internal advice under 19 C.F.R. § 177.11 regarding protest number 3002-21-103869 and referred to the Exclusion Order Enforcement Branch (“EOE Branch”), Regulations and Rulings, on January 31, 2022. Triple T Trading Ltd. (“Triple T”) is the importing party that submitted the administrative challenge under consideration. Specifically, Triple T is challenging U.S. Customs and Border Protection’s (“CBP”) exclusion of certain foam footwear (“the articles at issue”) contained in entry no. [[ ]] by reason of the general exclusion order issued by the U.S. International Trade Commission (“ITC” or “Commission”), pursuant to 19 U.S.C. § 1337, in Investigation Number 337-TA-567. Protest Submission at 3; see also, e.g., Certain Foam Footwear, Investigation No. 337-TA-567, EDIS Doc. No. 454597, Notice of Final Commission Determination of Violation, Issuance of General Exclusion Order and Cease and Desist Orders; and Termination of Investigation at 5-8 (July 15, 2011) (“567 GEO”).
As an initial matter, while “the exclusion of merchandise from entry” as a statutory category is generally addressed under subsection (4) of 19 U.S.C. § 1514(a), Congress exempted from this provision “a determination appealable under section 1337 of this title [i.e., Title 19].” See 19 U.S.C. § 1514(a)(4). As shown below, the determination that Triple T is attempting to protest falls under this exemption. Accordingly, this protest submission is not proper under 19 U.S.C. § 1514 and should be DENIED AS NOT PROTESTABLE. However, the EOE Branch has authority under 19 C.F.R. § 177.11 to address the substance of Triple T’s challenge and determine whether the articles at issue are subject to the 567 GEO. This authority is consistent with the broader authority of Regulations and Rulings to address administrative challenges to agency action, even in instances, for example, when an importer does not request further review of a protest but an issue arises for which a field office seeks advice or guidance. See e.g., HQ H087980, dated December 19, 1990; see also HQ H317432, dated April 29, 2021 (“We are providing internal advice with regard to Protest No. 4772-20-100684.”). Accordingly, “[a]dvice or guidance as to the interpretation or proper application of the Customs and related laws with respect to a specific Customs transaction may be requested by Customs Service field offices from the Headquarters Office at any time, whether the transaction is prospective, current, or completed.” 19 C.F.R. § 177.11(a) (emphasis added); see also 19 C.F.R. § 177.1. Therefore, in addition to analyzing why the protest submission in this case is not proper, the EOE Branch will address the admissibility question with respect to the articles at issue pursuant to the authority in 19 C.F.R. § 177.11. On that question, as discussed in greater detail below, and upon reexamination of the imported merchandise, we find that the articles at issue, absent any issues outside 19 U.S.C. § 1337 that bear on admissibility, may be released and entered for consumption into the United States.
Information bracketed in red [[ ]] in this letter will be redacted from the public version when published in accordance with 19 U.S.C. § 1625. Nothing in Triple T’s submission, which included Exhibits 1-3, was designated as confidential. However, if there is additional information not currently bracketed in red [[ ]] that Triple T believes should be redacted from the public version, Triple T must contact the EOE Branch at [email protected] within fifteen (15) working days of the date of this letter identifying the additional information that should be redacted from the public version. Please note that CBP is guided in this regard by the laws relating to confidentiality and disclosure to include, for example, the Freedom of Information Act (“FOIA”), as amended (5 U.S.C. § 552), the Trade Secrets Act (“TSA”) (18 U.S.C. § 1905) and the Privacy Act of 1974, as amended (5 U.S.C. § 552a).
BACKGROUND
ITC Investigation No. 337-TA-567
The Commission instituted Investigation No. 337-TA-567 on May 11, 2006, based on a complaint, as amended, filed by Crocs, Inc. (“Crocs”). 71 Fed. Reg. 27514-15 (May 11, 2006). The complaint alleged, inter alia, violations of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. § 1337), in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain foam footwear by reason of infringement of claims 1 and 2 of U.S. Patent No. 6,993,858 (“the ‘858 patent”) and U.S. Patent No. D517,789 (“the ‘789 patent”).
On July 25, 2008, the Commission issued its final determination finding no violation of section 337. 73 Fed. Reg. 45073-74 (Aug. 1, 2008). On July 15, 2011, following an appeal to the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”) and subsequent remand vacating the Commission’s prior finding of no violation, the Commission found a violation of section 337 based on infringement of the asserted claims of the patent and issued, inter alia, a general exclusion order. 76 Fed. Reg. 43723-24 (July 21, 2011). The general exclusion order, inter alia, prohibits the unlicensed entry for consumption of foam footwear covered by one or more of claims 1 and 2 of the ’858 patent or by the ‘789 patent. See 567 GEO at ¶ 1. The ‘789 patent expired in March 2020, and thus, only claims 1 and 2 of the ‘858 patent remain.
Additionally, on December 8, 2020, Double Diamond Distribution, Ltd. (“Double Diamond”), a respondent from the underlying investigation, filed a request for an expedited advisory opinion proceeding to determine whether its new products fell within the scope of the Commission’s remedial orders. See Certain Foam Footwear, Investigation No. 337-TA-567 (Advisory Opinion Proceeding 2), EDIS Doc. No. 739678, Commission Opinion at 1 (April 13, 2021) (“Comm’n Op. (Advisory Opinion Proceeding 2)”). On December 18, 2020, Crocs filed a response in opposition to Double Diamond’s request. Id. at 3. On January 13, 2021, the Commission instituted an advisory proceeding where Crocs and Double Diamond were named as parties to the proceeding. Id. Ultimately, the Commission determined that Double Diamond’s new products included permanently affixed plastic washers that prevented any direct contact between the strap and the base of the shoe, and thus did not fall within the scope of the GEO. Id. at 1. During that advisory opinion proceeding, Crocs argued that “[t]o the extent the washers in the footwear models that Double Diamond now intends to import are temporary in nature and intended to be removed upon importation or purchase, such footwear would still fall within the scope of the Remedial Orders.” Id. at 13. However, the Commission found that the record supported “Double Diamond’s contention that the plastic washers on its new Original Beach DAWGS™ shoes are ‘permanently affixed, in that they cannot—and are not intended to be [sic]—be removed by a user without extraordinary effort.’” Id.
The Import Transaction at Issue
The import transaction at issue is entry no. [[ ]]. Specifically, this entry that Triple T filed generally contained “slippers” of varying styles, as described on the relevant entry documents, such as the commercial invoice. The entry was detained on October 19, 2021. Upon review of the articles at issue, CBP found, inter alia, that:
none of the parties to the import transaction have met their burden to establish noninfringement as a condition of entry citing Hyundai Elecs. Indus. Co. v. Int’l Trade Comm’n, 899 F.2d 1204, 1210 (Fed. Cir. 1990); and
the articles at issue were (i) foam footwear; and (ii) infringed at least claim 1 of U.S. Patent No. 6,993,858.
Specifically, as shown in the chart below, CBP believed that the articles at issue met all the claim limitations in at least claim 1 of U.S. Patent No. 6,993,858.
Claim 1 of 6,993,858
Articles at issue
A footwear piece comprising:
The invoice and packing list both describe the articles at issue as “slippers.” Moreover, the entry package included an “Interim Footwear Invoice.”
a base section including an upper and a sole formed as a single part manufactured from a moldable foam material; and
The picture above shows that the base section includes both an upper and a sole formed as a single part.
a strap section formed of a moldable material that is attached at opposite ends thereof to the upper of the base section with plastic connectors such that the moldable foam material of the strap section is in direct contact with the moldable material of the base section and pivots relative to the base section at the connectors;
wherein the upper includes an open rear region defined by an upper opening perimeter, and
wherein frictional forces developed by the contact between the strap section and the base section at the plastic connectors are sufficient to maintain the strap section in place in an intermediary position after pivoting, whereby the strap section lends support to the Achilles portion of the human foot inserted in the open rear region; and
wherein the upper includes a substantially horizontal portion and a substantially vertical portion forming a toe region that generally follows the contour of a human foot, wherein the toe region tapers from an inner area of the base section where the larger toes exist to an outer area of the base section where the smaller toes exist; and
wherein the sole includes a bottom surface having front and rear tread patterns longitudinally connected by a flat section.
The picture above shows the bottom surface of the sole with front and rear tread patterns longitudinally connected by a flat section.
Moreover, it was CBP’s understanding at the time of importation for this shipment that the fleece within the articles at issue was easily removable, in contravention of the Commission’s finding in the advisory opinion proceeding referenced above. See Comm’n Op. (Advisory Opinion Proceeding 2) at 13. Thus, CBP issued an exclusion letter to Triple T on October 25, 2021, noting, inter alia, that the entry was excluded for violating the general exclusion order issued by the Commission in Investigation No. 337-TA-567 for infringing one or more of claims 1 and 2 of U.S. Patent No. 6,993,858. See e.g., Exhibit 1 of Protest Submission.
The Instant Submission
CBP received Triple T’s submission, challenging the exclusion, on November 22, 2021. In particular, Triple T argues that there is no “‘direct contact” between the strap and body of the shoe that develops ‘friction’” as required by the remaining claims in the GEO. Protest Submission at 3.
ISSUE
Whether (1) an exclusion from entry that CBP based on an order issued by the U.S. International Trade Commission pursuant to 19 U.S.C. § 1337 is subject to protest under 19 U.S.C. § 1514(a); and (2) the articles at issue are subject to the 567 GEO.
III. LAW AND ANALYSIS
Section 337 Exclusion Order Administration
The Commission shall investigate any alleged violation of section 337 on complaint under oath or upon its initiative. See 19 U.S.C. § 1337(b)(1). If the Commission determines, as a result of an investigation under this section, that there is a violation of this section, it shall direct that the articles concerned, imported by any person violating the provision of this section, be excluded from entry into the United States unless the Commission finds based on consideration of the public interest that such articles should not be excluded from entry. See 19 U.S.C. § 1337(d)(1). When the Commission determines there is a violation of section 337, it generally issues one of two types of exclusion orders: (1) a limited exclusion order or (2) a general exclusion order. See Fuji Photo Film Co., Ltd. V. U.S. Int’l Trade Comm’n, 474 F.3d 1281, 1286 (Fed. Cir. 2007).
Both types of orders direct CBP to bar infringing products from entering the country. See Yingbin-Nature (Guangdong) Wood Indus. Co. v. U.S. Int’l Trade Comm’n, 535 F.3d 1322, 1330 (Fed Cir. 2008). “A limited exclusion order is ‘limited’ in that it only applies to the specific parties before the Commission in the investigation. In contrast, a general exclusion order bars the importation of infringing products by everyone, regardless of whether they were respondents in the Commission's investigation.” Id. A general exclusion order is appropriate only if two exceptional circumstances apply. See Kyocera Wireless Corp. v. U.S. Int’l Trade Comm’n, 545 F.3d 1340, 1356. A general exclusion order may only be issued if (1) “necessary to prevent circumvention of a limited exclusion order,” or (2) “there is a pattern of violation of this section and it is difficult to identify the source of infringing products.” 19 U.S.C. § 1337(d)(2); see Kyocera, 545 F.3d at 1356 (“If a complainant wishes to obtain an exclusion order operative against articles of non-respondents, it must seek a GEO [general exclusion order] by satisfying the heightened burdens of §§ 1337(d)(2)(A) and (B).”).
In addition to the action taken above, the Commission may issue an order under 19 U.S.C. § 1337(i) directing CBP to seize and forfeit articles attempting entry in violation of an exclusion order if their owner, importer, or consignee previously had articles denied entry on the basis of that exclusion order and received notice that seizure and forfeiture would result from any future attempt to enter articles subject to the same. An exclusion order under § 1337(d)—either limited or general—and a seizure and forfeiture order under § 1337(i) apply at the border only and are operative against articles presented for customs examination or articles conditionally released from customs custody but still subject to a timely demand for redelivery. See 19 U.S.C. § 1337(d)(1) (“The Commission shall notify the Secretary of the Treasury of its action under this subsection directing such exclusion from entry, and upon receipt of such notice, the Secretary shall, through the proper officers, refuse such entry.”); id. at (i)(3) (“Upon the attempted entry of articles subject to an order issued under this subsection, the Secretary of the Treasury shall immediately notify all ports of entry of the attempted importation and shall identify the persons notified under paragraph (1)(C).”).
Significantly, unlike district court injunctions, the Commission can issue a general exclusion order that broadly prohibits entry of articles that violate Section 337 of the Tariff Act of 1930 without regard to whether the persons importing such articles were parties to, or were related to parties to, the investigation that led to issuance of the general exclusion order. See Vastfame Camera, Ltd. v. U.S. Int’l Trade Comm’n, 386 F.3d 1108, 1114 (Fed. Cir. 2004). The Commission also has recognized that even limited exclusion orders have broader applicability beyond just the parties found to infringe during an investigation. See Certain GPS Devices and Products Containing Same, Inv. No. 337-TA-602, Comm’n Op. at 17, n. 6, Doc ID 317981 (Jan. 2009) (“We do not view the Court’s opinion in Kyocera as affecting the issuance of LEOs [limited exclusion orders] that exclude infringing products made by respondents found to be violating Section 337, but imported by another entity. The exclusionary language in this regard that is traditionally included in LEOs is consistent with 19 U.S.C. § 1337(a)(1)(B)–(D) and 19 U.S.C. § 1337(d)(1).”).
Moreover, “[t]he Commission has consistently issued exclusion orders coextensive with the violation of section 337 found to exist.” See Certain Erasable Programmable Read Only Memories, Inv. No. 337-TA-276, Enforcement Proceeding, Comm’n Op. at 11, Doc ID 43536 (Aug. 1991) (emphasis added). “[W]hile individual models may be evaluated to determine importation and [violation], the Commission’s jurisdiction extends to all models of [violative] products that are imported at the time of the Commission’s determination and to all such products that will be imported during the life of the remedial orders.” See Certain Optical Disk Controller Chips and Chipsets, Inv. No. 337-TA-506, Comm’n Op. at 56–57, USITC Pub. 3935, Doc ID 287263 (July 2007).
Lastly, despite the well-established principle that “the burden of proving infringement generally rests upon the patentee [or plaintiff],” Medtronic, Inc. v. Mirowski Family Ventures, LLC, 571 U.S. 191 (2014), the Commission has held that Medtronic is not controlling precedent and does not overturn its longstanding practice of placing the burden of proof on the party who, in light of the issued exclusion order, is seeking to have an article entered for consumption. See Certain Sleep-Disordered Breathing Treatment Systems and Components Thereof, Inv. No. 337-TA-879, Advisory Opinion at 6–11. In particular, the Commission has noted that “[t]he Federal Circuit has upheld a Commission remedy which effectively shifted the burden of proof on infringement issues to require a company seeking to import goods to prove that its product does not infringe, despite the fact that, in general, the burden of proof is on the patentee to prove, by a preponderance of the evidence, that a given article does infringe[.]” Certain Integrated Circuit Telecommunication Chips, Inv. No. 337-TA-337, Comm’n Op. at 21, n.14, USITC Pub. 2670, Doc ID 217024 (Aug. 1993), (emphasis in original) (citing Sealed Air Corp. v. U.S. Int’l Trade Comm’n, 645 F.2d 976, 988–89 (C.C.P.A. 1981)).
This approach is supported by Federal Circuit precedent. See Hyundai Elecs. Indus. Co. v. U.S. Int'l Trade Comm'n, 899 F.2d 1204, 1210 (Fed. Cir. 1990) (“Indeed, we have recognized, and Hyundai does not dispute, that in an appropriate case the Commission can impose a general exclusion order that binds parties and non-parties alike and effectively shifts to would-be importers of potentially infringing articles, as a condition of entry, the burden of establishing noninfringement. The rationale underlying the issuance of general exclusion orders—placing the risk of unfairness associated with a prophylactic order upon potential importers rather than American manufacturers that, vis-a-vis at least some foreign manufacturers and importers, have demonstrated their entitlement to protection from unfair trade practices—applies here [in regard to a limited exclusion order] with increased force.”) (emphasis added) (internal citation omitted).
Decisions of Customs Subject to Protest
As set forth in the statute, 19 U.S.C. § 1514(a) identifies certain decisions that are final if no protest is filed. Specifically:
[D]ecisions of the Customs Service, including the legality of all orders and findings entering into the same, as to—
the appraised value of merchandise;
the classification and rate and amount of duties chargeable;
all charges or exactions of whatever character within the jurisdiction of the Secretary of the Treasury;
the exclusion of merchandise from entry or delivery or a demand for redelivery to customs custody under any provision of the customs laws, except a determination appealable under section 1337 of this title;
the liquidation or reliquidation of an entry, or reconciliation as to the issues contained therein, or any modification thereof, including the liquidation of an entry, pursuant to either section 1500 of this title or section 1504 of this title;
the refusal to pay a claim for drawback; or
the refusal to reliquidate an entry under subsection (d) of section 1520 of this title;
shall be final and conclusive upon all persons (including the United States and any officer thereof) unless a protest is filed in accordance with this section, or unless a civil action contesting the denial of a protest, in whole or in part, is commenced in the United States Court of International Trade[.]
19 U.S.C. § 1514(a) (emphasis added). This is echoed in CBP’s protest regulations at 19 C.F.R. Part 174, which mirror the CBP decisions that may be protested under 19 U.S.C. § 1514. Specifically, 19 C.F.R. § 174.11(b) states:
CBP administrative decisions involving the following subject matters are subject to protest:
The appraised value of merchandise;
The classification and rate and amount of duties chargeable;
All charges or exactions of whatever character, including the accrual of interest, within the jurisdiction of the Secretary of Homeland Security or the Secretary of the Treasury;
The exclusion of merchandise from entry, delivery, or a demand for redelivery to CBP custody under any provision of the customs laws except a determination that may be appealed under 19 U.S.C. 1337;
The liquidation or reliquidation of an entry, or any modification of an entry;
The refusal to pay a claim for drawback;
The refusal to reliquidate an entry made before December 18, 2004, under section 520(c), Tariff Act of 1930, as amended (19 U.S.C. 1520(c)); or
The refusal to reliquidate an entry under section 520(d), Tariff Act of 1930, as amended (19 U.S.C. 1520(d)).
19 C.F.R. § 174.11(b).
Therefore, according to the statute, an exclusion from entry is final unless a protest is filed. However, the statute otherwise exempts from the applicability of these provisions exclusions that are based on a remedial order that the Commission issued pursuant to Section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1337. The Federal Circuit has noted the same regarding the statutory framework. See Volkswagen of Am., Inc. v. United States, 532 F.3d 1365, 1371 (Fed. Cir. 2008) (“Section 1514 provides several exceptions to the general procedures for challenging of Customs’ decisions. … Section 1514 also provided that section[] 337 (relating to unfair practices in import trade) … of the Tariff Act remain exceptions from the general protest procedures and deadline prescribed in subsections (a) and (c).”) (emphasis added).
Lower courts have reached the same conclusion as the Federal Circuit regarding the applicability of statute. See Wirtgen Am., Inc. v. United States, 443 F. Supp. 3d 198, 216 (D.D.C. 2020) (“The upshot of the Court’s reading would be that exclusion decisions by Customs made pursuant to the Commission’s determination of a Section 337 violation, i.e., an exclusion order, may not be the subject of an administrative protest before Customs. That would be consistent with Congress’s intent that the ITC and the Federal Circuit have exclusive jurisdiction to adjudicate challenges to Section 337 determinations.”) (emphasis in the original). Despite this reading, other lower courts have a different understanding regarding the meaning of the statute’s exemption for exclusions based on Section 337. See Wirtgen Am., Inc. v. United States, 437 F. Supp. 3d 1302 (Ct. Int’l Trade, 2020). In any event, with respect to these differing interpretations in the lower courts, “[a] decision of a federal district court judge is not binding precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different case.” Camreta v. Greene, 563 U.S. 692, 709, FN 7 (2011); see also Container Store v. United States, 864 F.3d 1326, 1333 (Fed. Cir. 2017) (“Stare decisis . . . is limited to only the legal determinations made in a prior precedential opinion and does not apply to either issues of fact, such as classification of specific goods within a construed tariff provision, or issues of law that were not part of a holding in a prior decision.”) (quoting Deckers Corp. v. United States, 752 F.3d 949, 956 (Fed. Cir. 2014)) (emphasis added).
Therefore, notwithstanding that exclusions from entry are generally identified in 19 U.S.C. § 1514(a), an exclusion from entry pursuant to 19 U.S.C. § 1337, i.e., the determination Triple T has challenged, is exempted from this provision such that it is not subject to challenge by protest but, as a non-final decision, may be reviewed pursuant to a request for internal advice under 19 C.F.R. § 177.11, as noted above. In this context, review of an exclusion based on Section 337 is available through a request for internal advice only in those cases “when[,] although there is evidence to support [the exclusion], [CBP] on the entire evidence is left with a definite and firm conviction that a mistake has been committed.” Anderson v. Bessemer City, 470 U.S. 564, 573 (1985) (emphasis added). In any other cases, an importer whose merchandise has been excluded from entry, based on Section 337, or another interested party will need to submit a ruling request for an inter partes proceeding under the general provisions of 19 C.F.R. Part 177 to address the admissibility question or, in appropriate circumstances, pursue an ancillary proceeding at the Commission under 19 C.F.R. Part 210.
The Articles at Issue Do Not Meet the “Direct Contact” Limitation in Claims 1 and 2 of the ‘858 Patent
Turning to the infringement question, it appears indisputable that if the fleece within the articles at issue (1) is not removable; and (2) blocks direct contact between the moldable foam material of the strap section and the moldable material of the base section, then the articles at issue do not meet the “direct contact” limitation and thus would not infringe claims 1 and 2 of the ‘858 patent or be subject to the 567 GEO. See e.g., Comm’n Op. (Advisory Opinion Proceeding 2) at 11 (“The fundamental question on which infringement of the relevant claims of the ‘858 patent hinges is undisputed: if the strap has any contact with the base of the shoe at the point of connection, it infringes; if the strap has no contact with the base of the shoe, it does not.”).
In the instant case, as shown supra in the pictures of an article at issue, CBP initially found that the fleece did not prevent direct contact between the moldable foam material of strap section and the moldable material of base section. See Section I.B. supra. As shown in those pictures (one of which is reproduced below with annotation), the fleece does not appear to extend all the way behind and around the moldable foam material of the strap, and as a result, the bottom portion of the moldable foam material of the strap directly makes contact with the moldable material of the base section. Id. (see e.g., row in claim chart pertaining to the limitation “moldable foam material of the strap section is in direct contact with the moldable material of the base section”). In other words, with respect to the articles at issue, there appeared to be “some contact directly between the strap section and base section that occurred somewhere in the area where the base and strap sections are connected,” which, as Triple T points out, is all that is required for there to be “direct contact.” See Certain Foam Footwear, Inv. No. 337-TA-567, Initial Determination at 39-41 (April 11, 2008); Protest Submission at 6-7 citing Certain Foam Footwear, Inv. No. 337-TA-567, Initial Determination at 39-41 (April 11, 2008).
To evaluate Triple T’s post-exclusion arguments, CBP reexamined the articles at issue to confirm (1) whether the fleece in the articles at issue was removable; and (2) whether the fleece in the articles at issue prevented direct contact between the moldable material of the strap section and the moldable material of the base section. From the samples of the articles at issue evaluated during this reexamination, CBP confirmed that (1) the fleece was not removable absent e.g., cutting the fleece out of the shoes (i.e., the fleece is “‘permanently affixed, in that they cannot – and are not intended to be [sic] – be removed by a user without extraordinary effort.’”), see, Comm’n Op. (Advisory Opinion Proceeding 2) at 13; and (2) the fleece of the samples of the articles at issue, in fact, extends all the way behind and around the moldable foam material of the strap section such that it prevents direct contact of the moldable foam material of strap section with moldable material of base section. Thus, in view of these findings resulting from the reexamination of the articles at issue, it is our position that the articles at issue are not covered by the remaining patent claims in the 567 GEO and, absent any issues outside 19 U.S.C. § 1337 bearing on admissibility, may be released and entered for consumption into the United States.
IV. HOLDING
We conclude that Triple T’s submission does not challenge a protestable decision under 19 U.S.C. § 1514(a). Accordingly, this protest should be denied as such. However, for the reasons noted above, the articles at issue, absent other issues, may be released and entered for consumption into the United States.
We reiterate that determinations of the Commission resulting from the underlying investigation or a related proceeding under 19 C.F.R. Part 210 are binding authority on CBP and, in the case of conflict, will by operation of law modify or revoke any contrary CBP ruling or decision pertaining to section 337 exclusion orders. See, FN 1, supra.
Sixty days from the date of the decision, Regulations and Rulings of the Office of Trade will make the decision available to CBP personnel, and to the public on the CBP website at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Dax Terrill
Chief, Exclusion Order Enforcement Branch