CLA-2 OT:RR:CTF:TCM H048380 CkG
Port Director
Customs and Border Protection
301 E. Ocean Blvd. Suite 1400
Long Beach, CA 90802
RE: Application for Further Review of Protest Number 2704-08-102258;
duty-free treatment of unfinished golf bags
Dear Port Director,
This is in response to the Application for Further Review of Protest Number 2704-08-102258, filed on behalf of the importer, Jeffery Bag Inc. (“Protestant”), contesting the denial by CBP of duty free treatment for the entry of unfinished golf bag bodies.
FACTS:
The protest covers four entries of unfinished golf bags, entered from July 24, 2007 to August 31, 2007, in subheading 6307.90.98, HTSUS. The importer filed a Post Entry Amendment on March 26, 2008, claiming duty-free entry under subheading 9902.23.24, HTSUS. CBP liquidated the entries in heading 6307, HTSUS, between June 6, 2008 and July 11, 2008. The instant merchandise consists of unfinished golf bag bodies of woven nylon with pockets and graphite shaft protection, imported with unattached rainhoods placed in the side storage pocket of the bag.
ISSUE:
Whether the instant golf bags are described in subheading 9902.23.24, HTSUS, as golf bag bodies sewn together with rainhoods, and therefore subject to duty-free treatment.
LAW AND ANALYSIS:
The matter protested is protestable under 19 U.S.C. §1514(a) (2) as a decision on classification. The protest was timely filed on July 11, 2008, within 180 days of liquidation of the first entry for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2) (B) (ii), (iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006)).
Further Review of Protest No. 2704-2008-102258 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24 because the decision against which the protest was filed involves specific factual and legal questions that have not been the subject of a Headquarters ruling or court decision. Specifically, the issue is whether the subject article may be entered duty free under subheading 9902.23.24, HTSUS.
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The HTSUS provisions at issue are as follows:
6307: Other made up articles, including dress patterns:
6307: Other:
6307.90.98: Other………..
* * * * * *
9902.23.24: Golf bag bodies made of woven fabrics of nylon or polyester,
sewn together with rainhoods, pockets, dividers, and graphite shaft protection (provided for in subheading 6307.90.98)
* * * * * *
There is no dispute that the instant merchandise is classified in subheading 6307.90.98, HTSUS, as “other made up articles”. The issue is whether they are subject to duty-free treatment under subheading 9902.23.24, HTSUS. Subheading 9902.23.24, HTSUS, provides for golf bag bodies made of woven nylon or polyester sewn together with rainhoods, pockets, dividers, and graphite shaft protection, as provided for in subheading 6307.90.98, HTSUS.
According to the terms of the subheading, golf bags classifiable in subheading 9902.23.24, HTSUS, must be sewn together with rainhoods. The subheading does not provide for golf bag bodies without rainhoods, or golf bag bodies imported with unattached rainhoods. CBP applies the HTSUS in accordance with the plain meaning of the statutory language. Where ambiguity exists, CBP will turn to the Explanatory Notes or other external sources such as legislative intent to aid in our interpretation. See e.g., HQ 960499, dated July 8, 1998. See also Great Western Sugar Co. v. United States, 59 CCPA 56, 452 F.2d 1394 (1971). There exists no ambiguity with respect to the language of subheading 9902.23.24. The language plainly states that rainhoods must be sewn to the body of the golf bag.
The importer argues that “in the golf bag industry, no known golf bag is made with a rainhood sewn to its body.” However, whether such a construction is typical of the industry is irrelevant. This provision is the result of a domestic petition to the Congressional Ways and Means Committee, which means that at least one domestic manufacturer is importing golf bags in this condition. Furthermore, the Port Director has identified one importer who is importing golf bag bodies with rainhoods sewn on. However, even if no golf bag bodies were imported as described in subheading 9902.23.24, HTSUS, it is not within the authority of CBP to unilaterally change the scope of the subheading in order to ensure a “fair” or “reasonable” outcome. See HQ 950719, dated December 31, 1991. Change in this area must be effected by means of legislative action. The importer may wish to contact its representatives in Congress should it desire to pursue classification of its golf bag bodies in Chapter 99.
Finally, the provisions of Chapter 99, added pursuant to the Miscellaneous Trade Bill (MTB) Process, are intended to include a very narrow range of products. The Congressional Committee on Ways and Means describes the MTB process as follows:
The bills are typically temporary duty suspensions on narrowly defined products…It is advisable to avoid defining a product by its end use in such a manner that the product can be identified only by tracking the product after it leaves the border. For example, one should not draft a duty suspension on “steel screws used in furniture” because customs officials would be unable at the border to distinguish those particular steel screws from any others. One would need to find a unique and functional feature of the screws for description purposes.
The unique and functional feature of the golf bag bodies for which subheading 9902.23.24, HTSUS, was intended is thus the attachment of the rainhoods directly to the bag. The subject golf bag bodies lack this feature, and therefore subheading 9902.23.24, HTSUS, does not apply. The subject golf bags are provided for in heading 6307, HTSUS.
HOLDING:
By application of GRI 1, the subject unfinished golf bags are classified in heading 6307, HTSUS, specifically in subheading 6307.90.98, HTSUS, which provides for “Other made up articles, including dress patterns: Other: Other: Other: Other.” The 2009 column one, general rate of duty is 7%.
You are instructed to deny the protest in full. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the Customs Form 19, 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 make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division