HQ 0083370 - Further Review of Protest 3901-6-001250 - United States International Trade Commision Rulings

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HQ 083370

February 2, 1990

CLA-2 CO:R:C:G 083370 PR

CATEGORY: CLASSIFICATION

TARIFF NO.: 384.8045

District Director of Customs
6109 South Canal Street
Chicago, Illinois 60607

RE: Further Review of Protest 3901-6-001250

Dear Sir:

This protest was filed against your decision on July 25, 1986, in the liquidation of Entry No. XX-XXXXXXX, dated May 27, 1986. It concerns the classification of garments.

FACTS:

No sample was submitted although we are advised that both the importer and its attorney were informed on numerous occasions that samples must be submitted when a protest is filed. The claim is made that the certain unspecified garments are vests and should be classified under item 384.94, Tariff Schedules of the United States Annotated (TSUSA), which provides for other women's or girls' man-made fiber garments, not knit and not ornamented. There is no statement made, nor evidence submitted to substantiate this claim although the attorney did put on the protest that if there are any questions, he may be contacted at a given phone number. We note that the entry included electronic components, footwear, sweaters, blouses, ties, and shirts.

The documentation submitted with the entry (invoice, etc.) states that all the wearing apparel articles are knit and refers to the garments either as shirts or sweaters. There is no evidence of any nonknit garments imported in the subject shipment.

ISSUE:

Two issues were presented: (1) Whether a valid protest was filed; and (2) Should any of the imported merchandise have been classified under a provision for other woven garments of man-made fibers.

LAW AND ANALYSIS:

Protestant has not provided one shred of evidence or any reasons to support its contention that the merchandise was misclassified. The documents submitted at the time of entry in no way support the claimed classification and are actually adverse to it. That, by itself, is sufficient to deny the protest.

However, we also wish to point out that the protest is fatally deficient. Section 174.13(a)(5) and (6), Customs Regulations, requires that a protest shall contain a specific description of the merchandise for which the protest is made, and set forth specifically for each claim the nature of, and justification for the objection. Here, Customs is left to assume which classification(s) were being protested and the reason(s) for such protest. Providing a phone number for Customs to call "For additional information" does not satisfy the requirements of Section 174.13(a)(5) and (6).

A protest will be deemed sufficient if it fairly and accurately apprises Customs of the objection which is raised. National Carloading Corp. v. United States, 44 Cust. Ct. 493, at 494, Abstract 64258 (1960). A protest must sufficiently, in view of all the circumstances, calls Customs attention to the objections being made so that Customs may consider and pass upon them. United States v. Sheldon & Co., 5 Ct. Cust. Appls. 427, at 429, T.D. 34946 (1914).

The Customs Court, in Mattel, Inc. v. United States, 72 Cust. Ct. 257, C.D. 4547 (1974), extensively reviewed the requirements for a valid protest and concluded that the courts have been very liberal in determining whether a valid protest existed. However, the court went on to state:

In short, the court, taking a liberal posture, has held that, however cryptic, inartistic, or poorly drawn a communication may be, it is sufficient as a protest . . . if it conveys enough information to apprise knowledgeable officials of the importer's intent and the relief sought. (at pg. 262)

Here, the protest merely noted that some article(s) covered by the concerned entry were classifiable as vests in a basket tariff provision. It was not stated if one or more of the four styles of shirts and/or the sweaters were thought
to be classifiable in that provision. We assume that the classification of the footwear and the radios was not in issue. Because of the multiple garments involved, recitation of a tariff provision could not reasonably apprise Customs officers which merchandise was the subject of the protest, and the reason(s) for the claimed classification.

HOLDING:

For the reasons stated above, you should deny the protest in full. A copy of this ruling should be attached to the Form 19, Notice of Action, to be sent to the protestant.

Sincerely,

John Durant, Director

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