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HQ 961551

October 9, 1998

CLA-2 RR:CR:TE 961551 SS


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.


John Durant, Director
Commercial Rulings Division

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