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HQ 952078


March 3, 1993

CLA-2 CO:R:C:T 952078 HP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6202.93.4500; 6204.63.3000

Ms. Patricia McCauley
District Director
U.S. Customs Service
P.O. Box 52790
Houston, TX 77052

RE: Application for Further Review of Protest 5301-1-100293. Track suits; effective; date; ruling; regulations; delay

Dear Ms. McCauley:

This is in reply to your Memorandum PRO-2-H:C of June 18, 1992. That memo transmitted for our consideration an Application for Further Review of Protest 5301-1-100293.

FACTS:

The merchandise at issue consists of women's woven, lined, water resistant track suits. On November 2, 1990, the protestant entered 66 cartons of track suits as separates, under subheadings 6202.93.4500 (jackets) and 6204.63.3000 (pants), Harmonized Tariff Schedule of the United States Annotated (HTSUSA). These subheadings each carry with them an applicable duty rate of 7.6% ad valorem. On April 3, 1991, you issued to the protestant a Customs Form 29 Notice of Action, informing the protestant that pursuant to a recently issued Headquarters ruling letter, the as yet unliquidated Entry required a Rate Advance from 7.6% ad valorem to 17% ad valorem. On April 26, 1991, the Entry was liquidated under heading 6211, HTSUSA.

ISSUE:

Whether the merchandise was liquidated under the correct tariff classification and corresponding duty rate under the HTSUSA?

LAW AND ANALYSIS:

Heading 6211, HTSUSA, provides for, inter alia, woven track suits. In HRL 084736 of June 13, 1989, we stated that

Explanatory Note 61.12 provides, in pertinent part:

(A) Track suits, i.e., knitted articles consisting of two pieces, not lined but sometimes with a raised inner surface (nap) which, because of their general appearance and the nature of the fabric, are clearly meant to be worn exclusively or mainly in the pursuit of sporting activities.

As a result, classification of [lined track suits] under Heading 6211, HTSUSA, is incorrect.

On January 14, 1991, two months after importation and Entry but more than three months prior to liquidation, Customs issued to a third party HRL 087511. In that letter, Customs revoked HRL 084736, ruling that track suits with a woven outer shell and an inner lining capable of imparting the abilities to breathe and wick away perspiration are classifiable as track suits under heading 6211, HTSUSA. Merchandise classified as such was dutiable at a rate of 17% ad valorem.

Section 177.9(a) of the Customs Regulations (19 C.F.R. 177.9(a)), states that

[a] ruling letter issued by the Customs
Service ... represents the official position of the Customs Service with respect to the particular transaction or issue described therein and is binding on all Customs Service personnel in accordance with the provisions of this section until modified or revoked. In the absence of a subsequent change of practice or other modification or revocation which affects the principle of the ruling set forth in the ruling letter, that principle may be cited as authority in the disposition of transactions involving the same circumstances.

The protestant has argued that at least since the issuance of HRL 084736, and until the issuance of HRL 087511, Customs has consistently classified woven, lined track suits as separates. Relying upon this and other rulings, protestant states that it "ordered, imported and sold these water-resistant track suits with linings, prior to the effective date of HQ 087511...." As evidence of this, protestant has submitted various documents from the transaction at issue, all dated before January 14, 1991. Therefore, protestant claims that had the Entry been liquidated at the Entry date (November 2, 1990), and not almost five months later, HRL 084736's lower duty rate would have been applicable.

Section 177.9(a), supra, continues by stating that "a ruling is effective on the date it is issued and may be applied to all entries which are unliquidated...." Emphasis added. Since the Entry at issue was legitimately liquidated after the effective date of HRL 087511, the finding in HRL 084736 is not be effective for protestant's merchandise. Accordingly, this Protest should be Denied.

Please note that pursuant to Section 177.9(d)(3), Customs Regulations, we have, in a separate correspondence, granted to protestant a delay in the effective date of HRL 087511.

HOLDING:

As a result of the foregoing, the instant merchandise is classified as follows:

Jackets

... under subheading 6211.43.0050, HTSUSA, textile category 635, as track suit jackets of man-made fibers. The applicable rate of duty is 17 percent ad valorem.

Trousers

... under subheading 6211.43.0040, HTSUSA, textile category 648, as track suit trousers of man-made fibers. The applicable rate of duty is 17 percent ad valorem.

You are instructed to Deny the protest in full. A copy of this decision should be forwarded to the protestant, or protestant's counsel, as part of the Notice of Action.

Sincerely,

John Durant, Director
Commercial Rulings Division

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