CLA-2 CO:R:C:T 953182 SK
Louis S. Shoichet
David A. Eisen
Tompkins & Davidson
One Astor Plaza
1515 Broadway, 43rd floor
New York, N.Y. 10036
RE: Modification of HRL 089086 (5/22/92); classification of
knitted terry headband under heading 6117, HTSUSA; not hair-
slide or the like of heading 9615, HTSUSA; Customs had no uniform
and established practice regarding the classification of these
articles for purposes of 19 CFR 177.10(c)(2); National Juice
Products Ass'n v. U.S., 10 CIT 48, 628 F. Supp. 978 (1986); Arbor
Foods, Inc. v U.S., 9 CIT 119, 607 F. Supp. 1474 (1985); Superior
Wire v. U.S., et al., 11 CIT 608; 669 F. Supp. 472; 1987 Ct.
Intl. Trade 460; Slip Op. 87-98.
Dear Sirs:
On May 22, 1992, this office issued you Headquarters Ruling
Letter (HRL) 089086 in which we classified a knitted terry
headband imported by your client, Goody Products, Inc., under
heading 6117, Harmonized Tariff Schedule of the United States
Annotated (HTSUSA). You have asked this office to review that
ruling and, upon reconsideration, this office is of the opinion
that the analysis in HRL 089086 is correct and classification
within heading 6117, HTSUSA, is proper. The subject merchandise
was erroneously classified as a cotton article however, and the
holding is accordingly modified to reflect the article's man-
made fiber construction.
FACTS:
The sample the subject of HRL 089086, referenced style
number 2563, is a 100 percent man-made fiber knit terry headband
measuring approximately seven inches in length and two inches in
width. Two parallel rows of decorative stitching run
continuously around the exterior of the headband. The headband
has a movable "knot" made of identical fabric which measures
approximately three inches in diameter. The knot wraps around a
section of the headband creating a "turban effect."
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ISSUE:
Whether Customs had a uniform and established practice
regarding the classification of knit terry headbands within
heading 9615, HTSUSA, prior to the issuance of HRL 089086 on May
22, 1992?
LAW AND ANALYSIS:
In your request for a reconsideration of HRL 089086, you do
not present arguments or information which would serve to dispute
the classification of the knit terry headband set forth in that
ruling; rather, you contend that Customs erred procedurally by
issuing HRL 089086 without first issuing public notice pursuant
to 19 U.S.C. Section 1315(d). You state that in HRL 089086
Customs incorrectly interpreted the term "hair-slides and the
like" of heading 9615, HTSUSA, as requiring the exclusion of all
soft structure textile hair ornaments from this provision. You
contend that this position is contrary to Customs' uniform and
established practice in which such articles have been classified
within heading 9615, HTSUSA, since the inception of the HTS. In
support of your argument, you cite several New York Ruling
Letters (NYRL's) which classified various types of textile
hairbands, ponytail holders and hair ornaments under heading
9615, HTSUSA.
19 CFR Section 177.10 governs the publication of Customs
decisions. 19 CFR 177.10(c)(2) states:
"[B]efore the publication of a ruling which has the
effect of changing a practice and which results in
the assesment of a higher rate of duty, notice that
the practice (or prior ruling on which the practice
is based) is under review will be published in the
Federal Register and interested parties given an
opportunity to make written submissions with respect
to the change."
The issue of what constitutes a uniform and established
practice or, more precisely, what does not constitute such a
practice, was addressed by the Court of International Trade in
two cases: National Juice Products Ass'n v. U.S., 10 CIT 48, 628
F. Supp. 978 (1986) and Arbor Foods, Inc. v. U.S., 9 CIT 119, 607
F. Supp. 1474 (1985). In National Juice Products, the court
found a "position" to exist based on the existence of several
rulings published in the Customs Bulletin that provided a
factually explicit description of a Customs position of at least
eight years standing. The Arbor Foods Court concluded that "a
series of ruling letters, oral assurances from various Customs
officials, and remissions of liquidation damages claims" did not
serve to constitute a position where the exact merchandise was
not covered by a ruling letter.
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The case before us resembles the situation in Arbor Foods
inasmuch as there has not been a Customs ruling letter which
classified the exact merchandise the subject of HRL 089086 in
heading 9615, HTSUSA. Your assertion that Customs has previously
classified headbands, ponytail holders and other similar types of
decorative hair ornaments in heading 9615, HTSUSA, irrespective
of whether the articles were of a rigid or soft construction, is
not sufficient to establish that Customs had a "position" with
regard to the specific merchandise at issue in HRL 089086 (i.e.
knit terry headbands). See Arbor Foods at p. 1478. In the
instant case, you claim Customs established a "position" and yet
the ruling letters you cite as creating this position did not
pertain to knit terry headbands identical to the article
currently at issue.
We note that the case at hand is distinguishable from the
situation in National Juice Producers where the court deemed
several rulings published in the Customs Bulletin which provided
a factually explicit description of a Customs position of at
least eight years standing as establishing a "position" for
purposes of 19 CFR 177.10(c)(2). At no time has Customs ever
issued a notice in either the Customs Bulletin or the Federal
Register which sets forth a position with regard to hair
articles, let alone with specific regard to knit terry headbands
(with the exception of T.D. 56545(28) published in volume 14 of
the 1965 Customs Bulletin which stated that rigid plastic
headbands with teeth were classifiable under TSUS item 750.05 or
750.15 and T.D. 56059(23), published in a Bureau letter dated
November 8, 1963, which stated that knit stretch nylon circular
headbands were classifiable as "headwear" under item 703.10,
TSUSA). The rulings you cite deal with a wide assortment of
various types of hair accessories and were only available to the
public via diskette, an indication that Customs did not consider
the rulings to be of widespread applicability. As stated in HRL
953638, dated August 19, 1993, citing Superior Wire v. United
States, et al., 11 CIT 608; 669 F.Supp. 472; 1987 Ct. Intl. Trade
460; Slip Op. 87-98, "[R]ulings regarded by Customs to be of
broad precedential value are generally published in the Customs
Bulletin."
Based on the information submitted to this office, and the
precedent established by the Court of International Trade in the
three cases described supra, this office is of the opinion that
Customs had not created a uniform and established practice with
regard to the classification of knit terry headbands at the time
HRL 089086 was issued. As no uniform practice was established
with regard to this commodity, no regulatory obligation existed
to issue a notice in the Customs Bulletin or Federal Register
prior to the issuance of HRL 089086 on May 22, 1992.
No information was provided to this office which serves to
dispute the correctness of the classification of style 2563 under
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heading 6117, HTSUSA, and Customs had not created a uniform and
established practice of classifying such articles in heading
9615, HTSUSA. Accordingly, no grounds exist for revocation of
HRL 089086. We do note, however, a factual error made in the
classification of style 2563 as to its fiber content. In the
original submission from your office requesting classification of
style 2563, dated March 6, 1991, you described style 2563 as an
article made from "100 percent cotton." In a later submission,
dated December 26, 1991, you decribed the article as being made
from "100 percent man-made fibers." This office failed to notice
the discrepancy and classified style 2563 as a cotton article
when, in fact, it was constructed from man-made fibers.
Accordingly, HRL 089086 is modified to reflect the correct
classification of style 2563 as constructed from man-made fibers
under subheading 6117.80.0035, HTSUSA.
We further note that as the Harmonized Commodity Description
and Coding System Explanatory Notes (EN) to heading 9615 have
been revised, this office will publish a notice in the Federal
Register with regard to this issue. No date for publication has
yet been determined.
HOLDING:
HRL 089086 is modified. Style 2563 is classifiable under
subheading 6117.80.0035, HTSUSA, which provides for "other made
up clothing accessories, knitted or crocheted...: other
accessories... of man-made fibers: other," dutiable at a rate of
15.5 percent ad valorem. The applicable textile quota category
is 659.
In order to ensure uniformity in Customs' classification of
this merchandise and eliminate uncertainty, pursuant to section
177.9(d)(1), Customs Regulations (19 CFR 177.9(d)(1), HRL 089086
is modified to reflect the above classification effective with
the date of this letter.
Sincerely,
John Durant, Director
Commercial Rulings Division