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HQ 962546





March 12, 1999

CLA-2 RR:CR:TE 962546 SS

Category: EXCLUSION

Brett Ian Harris, Esquire
Grunfeld, Desiderio, Lebowitz & Silverman 245 Park Avenue, 33rd Floor
New York, NY 10167-0002

RE: Request for Set Aside of Denial of Further Review and to Void the Denial of Protest; 19 U.S.C. §1515(c); Criteria for Further Review; 19 C.F.R. §174.24; Protest No. 4103-98-100285; Exclusion; 19 U.S.C. §1499

Dear Mr. Harris:

This is in response to your Request for Set Aside of Denial of Further Review of Protest and to Void the Denial of Protest Number 4103-98-100285 filed on behalf of the importer, Mast Industries, Inc. (“Protestant”), seeking to set aside the Port’s denial of Protestant’s Application for Further Review and Protest.

Protestant attempted to enter a shipment of Four Thousand Nine Hundred Sixty Eight (4,968) women’s 100% polyester woven sleep shirts. Protestant claimed Sri Lanka as the country of origin. Based upon the record, it appears that the Port Director excluded the merchandise from entry on October 23, 1998, based on the belief that the merchandise was not of Sri Lanka origin. On November 9, 1998, Protestant filed its Protest and Application for Further Review. Based upon the record, it appears that the Protestant was notified on December 4, 1998, that the Port Director had denied the Protest and Application for Further Review. On January 13, 1999, Protestant filed its Request for Set Aside of Denial of Further Review requesting that the denial of the Application for Further Review be set aside and that the denial of the Protest be voided. Protestant alleges that the Application for Further Review was erroneously and improperly denied in that the Protest is entitled to further review under 19 C.F.R. §174.24(b).

If a protesting party believes that an application for further review was erroneously or improperly denied, Section 1515(c) allows the protesting party to file a written request with the Commissioner of Customs requesting that the denial of the application for further review be set aside. 19 U.S.C. §1515(c). The Commissioner of Customs may review such request and, based solely on the information before the Customs Service at the time the application for further review was denied, may set aside the denial of the application for further review and void the denial of the protest. Id. Accordingly, we must determine whether or not the denial of the Application for Further Review was proper.

Section 174.24 of the Customs Regulations (19 C.F.R. §174.24) sets forth the criteria that must be met in order for a protest to warrant further review. In relevant part, Section 174.24 states as follows:

“174.24 Criteria for further review.

Further review of a protest which would otherwise be denied by the port director shall be accorded to a party filing an application for further review which meets the requirements of §175.25 when the decision against which the protest was filed:

. . .

(b) Is alleged to involved questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs Courts;”

Thus, in order to determine whether or not the Application for Further Review was properly denied, we must examine the decision against which the Protest was filed. In this case, the Protest was against Customs’ decision to exclude the merchandise based on its belief that the goods were not of Sri Lanka origin. You contend that the Protest involves questions of fact concerning whether or not the documentation supports the country of origin claimed. You further contend that none of the parties named in §174.24(b) have considered the questions of fact with reference to the entry under review. Although we agree that this case involves a question of fact, the answer to that question has been ruled upon by the Commissioner of Customs’ designee. The Port Director is the official designated to determine the country of origin of textiles and textile products. See 19 C.F.R. Part 12 and 19 C.F.R. Part 141. The Port Director has made that decision and the merchandise has been denied entry into the United States. It is Headquarters belief that cases involving exclusions and the sufficiency of documentation to justify country of origin are not the type of factual determinations warranting further review by the Office of Regulations and Rulings, Headquarters. See Headquarter Ruling Letter (“HRL”) 961551, dated September 9, 1998, and HRL 962141, dated September 24, 1998. Accordingly, the Protest does not meet the criteria required under 19 C.F.R. §174.24(b) for approval of the Application for Further Review.

Sufficient information on the documentary and evidentiary requirements have been made available to Customs officers and the importing community to make all parties aware of what is required to establish origin. As indicated above, the Port Director determined that those documentary and evidentiary requirements had not been met. Headquarters review of the record before the Port Director at the time of denial of the Application for Further Review has lead us to the conclusion that the port’s decision was consistent with the information provided and in accordance with the existing directives. Accordingly, the Application for Further Review was properly denied and Protestant’s request for relief pursuant to 19 U.S.C. §1515(c) is hereby denied.

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

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