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HQ 966497




October 3, 2003

CLA-2 RR:CR:TE 966497 RH

CATEGORY: CLASSIFICATION

TARIFF NO.: 6204.62.4010

Area Director
Bureau of Customs and Border Protection
Building 77
JFK International Airport
Jamaica, NY 11430

Attn: Chief, Liquidation and Protest Branch

RE: Protest number 4701-03-100169; Criteria for Further Review; 19 CFR §§174.24 and 174.25; Sufficiency of Documentation to Justify Country of Origin

Dear Sir:

This is in reply to your memorandum of April 29, 2003, forwarding Application for Further Review of Protest (AFR) number 4701-03-100169 to our office for review.

The law firm of Follick & Bessich, LLP, filed the AFR, on behalf of Club Z, Inc., against Customs & Border Protection’s (CBP) notice to redeliver three entries of merchandise for failure to establish the proper country of origin. Counsel claims that the documentation furnished to CBP establishes that the country of origin of the merchandise is Oman.

FACTS:

On May 7, June 13 and November 1, 2002, the protestant entered three shipments of cotton capri pants under subheading 6204.62.4010 of the

Harmonized Tariff Schedule of the United States (HTSUS).

We note that CBP liquidated the entries, as entered, on March 21, April 4, and April 25, 2003. However, the commercial invoices, order of confirmations and certificates of origin submitted with the entries describe the garments as “solid denim pull-on capri pants.” Accordingly, the garments should have been classified as women’s trousers under subheading 6204.62.4010. The duty rate is the same. Oman was the alleged country of origin. Following entry, CBP sent a Request for Information on Customs Form (CF) 29 to the protestant itemizing certain information for it to submit to establish Oman as the proper country of origin.

The protestant failed to provide the requested information, and on October 31 and November 5, 2002, CBP issued three individual Notices to Mark and/or Redeliver (CF 4647) the merchandise. The protestant did not redeliver the merchandise and a claim of liquidated damages is pending.

Counsel for the protestant timely filed the protest and AFR on January 29, 2003. However, for the reasons set forth below we find that further review of the protest is not warranted.

ISSUE:

Does AFR 4701-03-100169 satisfy the criteria for further review under 19 CFR §§174.24 and 174.25?

LAW AND ANALYSIS:

Section 174.24 of the Customs Regulations (19 CFR §174.24) lists the criteria for granting an AFR. It states that an AFR will be granted when the decision against which the protest was filed:

Is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise;

Is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts;

Involves matters previously ruled upon by the Commissioner of Customs or his designee or by the Customs courts but facts are alleged or legal arguments presented which were not considered at the time of the original ruling; or

Is alleged to involve questions which the Headquarters Office, United States Customs Service, refused to consider in the form of a request for internal advice pursuant to §177.11(b)(5) of this chapter.

Additionally, Section 175.25(b)(3) of the Customs Regulations (19 CFR §174.25(b)(3)) provides, in pertinent part, that an application for further review shall contain a statement of any facts or additional legal arguments, not part of the record, upon which the protesting party relies, including the criterion set forth in §174.24 which justifies further review.

Under Section V of the instant Protest (“Justification of Further Review Under the Criteria in 19 CFR 174.24 and 174.25”), the protestant simply reiterates the criteria listed in 19 CFR §174.24 and merely alleges that the submitted documents substantiate that Oman is the country of origin.

The instant protest only involves questions of fact concerning whether or not the documentation supports the country of origin claimed. In that regard, CBP has consistently held 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. See HQ 962546, dated March 12, 1999, HQ 962547, dated March 12, 1999; HQ 962548, dated March 12, 1999; HQ 962549, dated March 12 1999; HQ 962141, dated September 24, 1998; HQ 961551, dated September 9, 1998; and HQ 963841, dated March 28, 2000.

Accordingly, we find that the instant protest does not meet the criteria for further review.

HOLDING:

Protest number 14701-03-100169 does not meet the criteria for further review under 19 CFR §174.24 and 19 CFR §174.25, and the AFR should not have been granted. We are remanding the protest to the Port. The Port is directed to contact Robert Abels (202) 972-1959 of the Office of Field Operations in order to coordinate the review of this matter prior to issuance of a decision on the protest.

When a determination is made, Section A1 of Customs Directive Number 099 3559-065, dated August 4, 1993, Subject: Revised Protest Directive is applicable and the decision needs to be on or with the Customs Form 19, Notice of Action, and furnished to the Protestant’s counsel within 60 days from the date of the determination.

Any question regarding the foregoing may be directed to Rebecca Hollaway of my staff at (202) 572-8814.

Sincerely,

Myles B. Harmon Director, Commercial Rulings Division

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