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HQ 960450

January 6, 1998

CLA-2 RR:TC:TE 960450 jb


TARIFF NO.: 6101.30.2010; 6103.43.1520; 6103.43.2015

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.


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
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.


Whether the Protestant has substantiated the claim for a "uniform and established practice"?


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.


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.


John Durant, Director
Commercial Rulings Division

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