HQ 0953182 - Modification of HRL 089086 (5/22/92); classification of knitted terry headband under heading 6117, HTSUSA; not hair- slide or the like of heading 9615, HTSUSA; Customs had no uniform and established practice regarding the classification of these articles for purposes of 19 CFR 177.10(c)(2); National Juice Products Ass'n v. U.S., 10 CIT 48, 628 F. Supp. 978 (1986); Arbor Foods, Inc. v U.S., 9 CIT 119, 607 F. Supp. 1474 (1985); Superior Wire v. U.S., et al., 11 CIT 608; 669 F. Supp. 472; 1987 Ct. Intl. Trade 460; Slip Op. 87-98. - United States International Trade Commision Rulings

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HQ 953182

November 3, 1993

CLA-2 CO:R:C:T 953182 SK

CATEGORY: CLASSIFICATION

TARIFF NO.: 6117.80.0035

Louis S. Shoichet
David A. Eisen
Tompkins & Davidson
One Astor Plaza
1515 Broadway, 43rd floor
New York, N.Y. 10036

RE: Modification of HRL 089086 (5/22/92); classification of knitted terry headband under heading 6117, HTSUSA; not hair- slide or the like of heading 9615, HTSUSA; Customs had no uniform and established practice regarding the classification of these articles for purposes of 19 CFR 177.10(c)(2); National Juice Products Ass'n v. U.S., 10 CIT 48, 628 F. Supp. 978 (1986); Arbor Foods, Inc. v U.S., 9 CIT 119, 607 F. Supp. 1474 (1985); Superior Wire v. U.S., et al., 11 CIT 608; 669 F. Supp. 472; 1987 Ct. Intl. Trade 460; Slip Op. 87-98.

Dear Sirs:

On May 22, 1992, this office issued you Headquarters Ruling Letter (HRL) 089086 in which we classified a knitted terry headband imported by your client, Goody Products, Inc., under heading 6117, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). You have asked this office to review that ruling and, upon reconsideration, this office is of the opinion that the analysis in HRL 089086 is correct and classification within heading 6117, HTSUSA, is proper. The subject merchandise was erroneously classified as a cotton article however, and the holding is accordingly modified to reflect the article's man- made fiber construction.

FACTS:

The sample the subject of HRL 089086, referenced style number 2563, is a 100 percent man-made fiber knit terry headband measuring approximately seven inches in length and two inches in width. Two parallel rows of decorative stitching run continuously around the exterior of the headband. The headband has a movable "knot" made of identical fabric which measures approximately three inches in diameter. The knot wraps around a section of the headband creating a "turban effect." ISSUE:

Whether Customs had a uniform and established practice regarding the classification of knit terry headbands within heading 9615, HTSUSA, prior to the issuance of HRL 089086 on May 22, 1992?

LAW AND ANALYSIS:

In your request for a reconsideration of HRL 089086, you do not present arguments or information which would serve to dispute the classification of the knit terry headband set forth in that ruling; rather, you contend that Customs erred procedurally by issuing HRL 089086 without first issuing public notice pursuant to 19 U.S.C. Section 1315(d). You state that in HRL 089086 Customs incorrectly interpreted the term "hair-slides and the like" of heading 9615, HTSUSA, as requiring the exclusion of all soft structure textile hair ornaments from this provision. You contend that this position is contrary to Customs' uniform and established practice in which such articles have been classified within heading 9615, HTSUSA, since the inception of the HTS. In support of your argument, you cite several New York Ruling Letters (NYRL's) which classified various types of textile hairbands, ponytail holders and hair ornaments under heading 9615, HTSUSA.

19 CFR Section 177.10 governs the publication of Customs decisions. 19 CFR 177.10(c)(2) states:

"[B]efore the publication of a ruling which has the effect of changing a practice and which results in the assesment 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 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.

The case before us resembles the situation in Arbor Foods inasmuch as there has not been a Customs ruling letter which classified the exact merchandise the subject of HRL 089086 in heading 9615, HTSUSA. Your assertion that Customs has previously classified headbands, ponytail holders and other similar types of decorative hair ornaments in heading 9615, HTSUSA, irrespective of whether the articles were of a rigid or soft construction, is not sufficient to establish that Customs had a "position" with regard to the specific merchandise at issue in HRL 089086 (i.e. knit terry headbands). See Arbor Foods at p. 1478. In the instant case, you claim Customs established a "position" and yet the ruling letters you cite as creating this position did not pertain to knit terry headbands identical to the article currently at issue.

We note that the case at hand is distinguishable from the situation in National Juice Producers where the court deemed several rulings published in the Customs Bulletin which provided a factually explicit description of a Customs position of at least eight years standing as establishing a "position" for purposes of 19 CFR 177.10(c)(2). At no time has Customs ever issued a notice in either the Customs Bulletin or the Federal Register which sets forth a position with regard to hair articles, let alone with specific regard to knit terry headbands (with the exception of T.D. 56545(28) published in volume 14 of the 1965 Customs Bulletin which stated that rigid plastic headbands with teeth were classifiable under TSUS item 750.05 or 750.15 and T.D. 56059(23), published in a Bureau letter dated November 8, 1963, which stated that knit stretch nylon circular headbands were classifiable as "headwear" under item 703.10, TSUSA). The rulings you cite deal with a wide assortment of various types of hair accessories and were only available to the public via diskette, an indication that Customs did not consider the rulings to be of widespread applicability. As stated in HRL 953638, dated August 19, 1993, citing Superior Wire v. United States, et al., 11 CIT 608; 669 F.Supp. 472; 1987 Ct. Intl. Trade 460; Slip Op. 87-98, "[R]ulings regarded by Customs to be of broad precedential value are generally published in the Customs Bulletin."

Based on the information submitted to this office, and the precedent established by the Court of International Trade in the three 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 terry headbands at the time HRL 089086 was issued. As no uniform practice was established with regard to this commodity, no regulatory obligation existed to issue a notice in the Customs Bulletin or Federal Register prior to the issuance of HRL 089086 on May 22, 1992.

No information was provided to this office which serves to dispute the correctness of the classification of style 2563 under
heading 6117, HTSUSA, and Customs had not created a uniform and established practice of classifying such articles in heading 9615, HTSUSA. Accordingly, no grounds exist for revocation of HRL 089086. We do note, however, a factual error made in the classification of style 2563 as to its fiber content. In the original submission from your office requesting classification of style 2563, dated March 6, 1991, you described style 2563 as an article made from "100 percent cotton." In a later submission, dated December 26, 1991, you decribed the article as being made from "100 percent man-made fibers." This office failed to notice the discrepancy and classified style 2563 as a cotton article when, in fact, it was constructed from man-made fibers. Accordingly, HRL 089086 is modified to reflect the correct classification of style 2563 as constructed from man-made fibers under subheading 6117.80.0035, HTSUSA.

We further note that as the Harmonized Commodity Description and Coding System Explanatory Notes (EN) to heading 9615 have been revised, this office will publish a notice in the Federal Register with regard to this issue. No date for publication has yet been determined.

HOLDING:

HRL 089086 is modified. Style 2563 is classifiable under subheading 6117.80.0035, HTSUSA, which provides for "other made up clothing accessories, knitted or crocheted...: other accessories... of man-made fibers: other," dutiable at a rate of 15.5 percent ad valorem. The applicable textile quota category is 659.

In order to ensure uniformity in Customs' classification of this merchandise and eliminate uncertainty, pursuant to section 177.9(d)(1), Customs Regulations (19 CFR 177.9(d)(1), HRL 089086 is modified to reflect the above classification effective with the date of this letter.

Sincerely,

John Durant, Director
Commercial Rulings Division

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