HQ 0083112 - Application for Further Review of Protests No. 1001- 8-004818 of May 31, 1988, and 1001-8-004509 of May 18, 1988 - United States International Trade Commision Rulings

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HQ 083112

July 17, 1989

CLA-2 CO:R:C:G 083112 SM

CATEGORY: CLASSIFICATION

TARIFF NO.: 384.3777

Area Director of Customs
JFK Airport Area, Bldg. 178
Jamaica, NY 114307

RE: Application for Further Review of Protests No. 1001- 8-004818 of May 31, 1988, and 1001-8-004509 of May 18, 1988

Dear Sir:

These protests, filed by Siegel, Mandell and Davidson on behalf of Company A Ventures, Inc., concern your classifica- tion of certain goods, covered by Entry No. 820-0307079-2 of December 10, 1987, as women's shirts subject to category 341. The protestant claims that they are classifiable as jackets and subject to category 335.

FACTS:

In a response dated February 5, 1988, on a Customs Form (CF) 6431, Report of Classification and Value, the National Import Specialist agreed with the sending Import Specialist that the goods were classifiable as other women's cotton shirts, not ornamented, not knit, under item 384.4789, Tariff Schedules of the United States Annotated (TSUSA), textile category 341. They had been entered under item 384.3777, TSUSA, textile category 335, as other women's cotton coats, not ornamented, not knit. A Notice of Redelivery was issued on February 19, 1988, requiring a visa in category 341. Counsel for the importer timely filed Protest No. 1001-8- 005509 on May 18. Nevertheless, the entry was liquidated, on May 20, 1988. Counsel then timely filed Protest No. 1001-8- 004818. Applications for Further Review were approved for both protests.

A sample of the merchandise, Style 490A, made in Pakistan, was submitted. It is a waist-length garment of a lightweight 100 percent cotton acid-washed fabric. It fea- tures a full-front opening secured by five metal buttons, a pointed collar, long sleeves with single-button cuffs, adjust- able tabs at the waist, a band around the lower edge, and
front and back yokes. It also features two patch pockets on the back and two front pockets with curved openings and par- tially visible patch pockets inside them. The front pockets start at the yoke and extend downward but do not reach the waist. The front pocketing hangs loosely inside the jacket.

Counsel for the importer argues that Style 490A is com- monly and commercially known as a jacket and would be worn only over a blouse or shirt because of its rough interior, front pockets, length, and overall styling. He states fur- ther that Company A Ventures does not sell any shirts. Pur- chase orders between Company A Ventures and its customers reflect sales as a jacket. Letters from Zayre Stores and Bradlees state that they purchased Style 490A as a jacket. A small advertising picture attached to the purchase order of Zayre's buyer refers to the garment as a cropped jacket. Both counsel and the National Import Specialist argue from various features of the garment and from application of the Textile Category Guidelines, C.I.E. 6/87, that the garment is a jacket or a shirt, respectively.

ISSUE:

Is Style 490A classifiable as a shirt or as a jacket?

LAW AND ANALYSIS:

At the outset it is necessary to say that the entry should not have been liquidated while a protest was pending. Protests against decisions of appropriate Customs officers are provided for at 19 U.S.C.A.{ 1514 (1980 and Supp. 1988). Subsection 1514(a) provides that "decisions of the appropriate customs officer, including the legality of all orders and findings entering into the same, as to-- . . . (4) . . . a demand for redelivery to customs custody under any provision of the customs laws . . . shall be final and conclusive upon all persons (including the United States and any officer thereof) unless a protest is filed in accordance with this section . . . ." Pursuant to the statute, in order to prevent the decision reflected in the Notice of Redelivery--namely, that the goods were not admissible without a category 341 visa--from becoming final, counsel for the importer filed a protest within 90 days of the date of the notice.

At that point liquidation should have been suspended. Our appellate court has held that liquidation, even in error, is final for all purposes, including the determination of admissibility. United States v. Utex International, Inc., --Fed. Cir. (T)--, 857 F.2d 1408 (1988). If liquidation had become final, the importer's statutory right to have his

(first) protest considered would have been defeated. In this case that right was preserved by the filing of a second pro- test, against the liquidation. Importers should not be placed under the burden of having to protest the same decision twice, and indeed are normally precluded from doing so. In this case it appears to have been the only recourse.

With regard to the classification issue, we note that the sending import specialist stated that the garment can be worn alone with sufficient coverage and has none of the usual jacket features. We do not find these statements particularly persuasive. Virtually any jacket can probably be worn alone with sufficient coverage for modesty. The garment has the appearance of a cropped jacket. The only feature suggesting strongly that it could be a shirt is the lightweight fabric. There are many lightweight, unlined jackets, however, and we are unable to find this factor conclusive. The interior, with its many seams and hanging pocket material, does not appear particularly comfortable for wear against the skin. In this case, absent any stronger evidence that the garment is in fact advertised, sold, and used as a shirt, we accept the import- er's characterization of the garment as a jacket.

HOLDING:

Style 490A is classifiable as claimed under item 384.3777, TSUSA (1987), textile category 335, a provision for other women's cotton coats, not ornamented. Therefore, you should allow in full the protest against the notice of redelivery, 1001-8-005509. Protest No. 1001-8-004818 should also be allowed on the basis of the allowance of the first.

For future reference, please note that when a protest has been filed against a demand for redelivery, liquidation should be suspended until a decision has been rendered on that protest.

Sincerely,

John Durant, Director
Commercial Rulings Division

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