CLA-2 RR:TC:TE 960450 jb
Port Director
U.S. Customs Service
4477 Woodson Road, Suite 200
St. Louis, MO 63134
RE: Decision on Application for Further Review of Protest No.
4503-96-100026; "Hydro Fleece" garments
Dear Sir:
This is a decision on application for further review of a
protest timely filed by Sharretts, Paley, Carter & Blauvelt, on
behalf of Browning Arms Division, on December 3, 1996, against
your decision regarding the classification of certain Hydro
Fleece garments. All entries were liquidated between October 18
and 25, 1996. Although the Protestant also makes a claim for
detrimental reliance, this issue will be addressed in a separate
letter.
FACTS:
The merchandise that is the subject of the present protest
consists of hunting garments comprised of jackets, pants and bib
overalls, made from a knit fabric laminated to a plastic Goretex
membrane. This material is described as "Hydrofleece". A
Customs Laboratory report has revealed that these garments are of
pile construction and consequently, the classification of these
garments is as follows: jackets- heading 6101, HTSUS; pants-
heading 6103, HTSUS; and bib overalls, heading 6103, HTSUS.
Although the Protestant does not dispute the classification
of this merchandise in chapter 61, HTSUS, the Protestant alleges
that there is a uniform and established practice based on
previous liquidations classifying merchandise made from this
fabric in chapter 62, HTSUS. Specifically, the importation
history of this merchandise, prior to the present protest, is as
follows:
1992 one entry of jackets composed of knit fabric coated or
laminated with polyurethane; entered in heading 6201,
HTSUS, as water resistant garments;
1993 six entries of jackets composed of knit fabric coated
or laminated with polyurethane; entered in heading
6201, HTSUS, as water resistant garments;
1994 eleven entries of jackets, pants and bib overalls,
composed of knit fabric coated or laminated with
polyurethane; entered in headings 6201, 6203, and 6210,
HTSUS, respectively;
1995 fourteen entries of jackets, pants and bib overalls,
composed of knit fabric laminated to Goretex film;
first four entries were entered in headings 6201, 6203,
and 6210, HTSUS, respectively; additionally, parka
hoods of the same construction were entered under
heading 6117, HTSUS;
on the fifth entry however, coveralls composed of the
same fabric were also entered,
under
heading
6211,
HTSUS;
the Protestant then filed a protest claiming that
pursuant to HQ 081134, the correct classification for
the coveralls and the jackets should be heading 6210,
HTSUS; this protest was approved by Customs
We note that all entries were made through one port.
Accordingly, the Protestant claims that the subject
merchandise should be classified in chapter 62, HTSUS.
ISSUE:
Whether the Protestant has substantiated the claim for a
"uniform and established practice"?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) is in accordance
with the General Rules of Interpretation (GRI). GRI 1 provides
that classification shall be determined according to the rules of
the headings and any relative section or chapter notes, taken in
order. Merchandise that cannot be classified in accordance with
GRI 1 is to be classified in accordance with subsequent GRI.
19 CFR Section 177.10 governs the publication of Customs
decisions. 19 CFR 177.10(c)(1) states:
Before the publication of a ruling which has the effect of
changing a practice and which results in the assessment 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 correctness of the contemplated 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.
Although the Protestant alleges that a "uniform and
established practice" exists, it is not premised on any
substantive fact. The alleged "uniform and established practice"
is not stated to exist as Customs position in general, with
respect to this commodity, but only for this particular importer.
In this respect, it is not the position of Customs to classify
merchandise of knit construction classifiable in chapter 61,
HTSUS, in chapter 62, HTSUS, a provision for woven garments.
This is substantiated by the fact that Customs has never issued a
notice in either the Customs Bulletin or the Federal Register
which sets forth a position stipulating as much. Additionally,
over the four year period in which this merchandise was imported,
we do not have "exact merchandise". The entries changed both in
their fabric composition, that is, from knit fabric coated or
laminated with polyurethane to knit fabric laminated to Goretex
film, as well as the range of garments, covering jackets, pants,
bib overalls and coveralls. Furthermore, we note that in one
entry that parka hoods, which were of the same construction as
the other garments, were properly entered under a knit, not woven
provision (heading 6117, HTUS).
Thus, based on the information submitted to this office, and
the precedent established by the Court of International Trade in
the court 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 garments in a provision
for woven garments.
Although the issue of "consistent treatment" was not raised
by the Protestant, we feel that this is also the appropriate time
with which this argument can be addressed and dispensed. In
applying to the Customs Service for a delay in the effective date
of a ruling letter, the Customs Regulations, 19 C.F.R.
177.9(e)(2), require that "an affected party must demonstrate to
the satisfaction of the Customs Service" that the party has
reasonably relied upon the consistent and continuous treatment of
merchandise by Customs. The evidence required to establish
continuous and consistent treatment includes a listing of all
substantially identical transactions by entry number; the
quantity and value of the merchandise; the ports of entry; the
dates of final action by Customs; and contracts, purchase orders
or other documents which indicate the arrangement of future
transactions based upon the previous treatment. We find the
Protestant's submission lacking of the required evidence. As we
have already indicated, the importation of the subject
merchandise does not reflect that substantially identical
transactions occurred over the stipulated four year period; the
type of garments varied as did the fabric construction.
Furthermore, the number of entries indicated through the one
port, over a four year period, are not substantial enough to
warrant a finding, to our satisfaction, of a consistent and
continuous treatment.
Finally, it is noted that included in the 1995 entry were
parka hoods of knit construction, entered in heading 6117,
HTSUS. We find it perplexing that although the hoods and the
remaining garments were composed of the same construction they
were entered under different fabric provisions, that is, knit and
woven, respectively. If at any time the Protestant realized that
Customs had erred in its classification of these knit garments in
a woven provision, the onus was on the Protestant to bring this
to Customs awareness so that the classification of this
merchandise in the appropriate provisions could be rectified.
HOLDING:
The subject merchandise, was correctly classified in chapter
61, HTSUS, which provides for garments of knit construction.
The protest should be denied in full and a copy of this
ruling should be appended to the CF 19 Notice of Action to
satisfy the notice requirement of section 174.30(a) Customs
Regulations.
In accordance with Section 3(A)(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed by your office to the
Protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with the decision
must be accomplished prior to mailing of the decision. Sixty
days
from the date of the decision the Office of Regulations and
Rulings will take steps to make the decision available to Customs
personnel via the Customs Rulings Module in ACS and the public
via the Diskette Subscription Service, Freedom of Information Act
and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division