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HQ 956115


April 6, 1994

CLA-2 CO:R:C:T 956115 HP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6201.93.3510; 6201.93.3520

Ms. Patricia McCauley
District Director
U.S. Customs Service
1717 East Loop
Room 401
Houston, TX 77029

RE: Application for Further Review of Protest No. 5301-91- 000044.

Dear Ms. McCauley:

This is in reply to Application for Further Review of Protest No. 5301-91-000044. That AFR concerned the tariff classification, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of water resistant jackets. In addition, that AFR concerned Customs' untimely liquidation of said jackets.

FACTS:

The above Protest was filed by Glad & Ferguson, on behalf of their client, the importer's surety. The surety duplicates and parallels claims made in the importer's protest 5301-90-000406, and, in addition, claims that since the entries were not liqui- dated within one year from the date of entry, the resulting extensions were contrary to the provisions of section 504, Tariff Act of 1930, as amended.

The Protest involves a number of styles of men's and boys' jackets entered under subheading 6201.93.3000, HTSUSA, as water resistant woven anoraks and similar garments. After entry, many samples were analyzed by the Customs Laboratory and tested in accordance with the water resistance requirements of Additional U.S. Note 2 to Chapter 62, HTSUSA. When the garments at issue failed the aforementioned test (see, e.g., Laboratory Report #5-90-10272-001 of January 26, 1990), the importer requested classification under heading 6210, HTSUSA, as garments made up of, inter alia, coated fabrics. This request was denied, and these Protests were filed.

Counsel for the importer has submitted a chart covering the style numbers of the garments at issue. We duplicate the conse- quential information on the following page. The first numeral in the Style designation indicates whether the style is men's (3XXX), boys' (4XXX), or men's "Big & Tall" (5XXX). Styles bearing the suffix MS or BU are made up of the same fabric as those of the same number without any suffix. Style 4729 is made up of the same fabric of Style 3729. Style 5X30 is made up of the same fabric of Style 5X29. Style 3727 is made up of the same fabric of Style 4727.

5301-91-000044 P3705
P3709
P3725
P3727
P3727MS
P3729
P3733
P4703
P4703
P4721
P4727
P4729
P4729MS

ISSUE:

Whether the garments at issue are water resistant; if not, are they made up of fabrics coated with plastics, as such fabrics are defined by the HTSUSA? Whether the entries are considered "deemed liquidated" under the Tariff Act of 1930, as amended?

LAW AND ANALYSIS:

Deemed Liquidation

Protest no. 5301-91-000044 covers three entries made between April 10, 1989 and May 18, 1989. These entries were liquidated on July 20, 1990.

Initially, we note that the protest was timely filed (i.e. within 90 days of the demand upon the protestant surety; see 19 U.S.C. 1514(c)(2)). With regard to the requirement in 19 U.S.C. 1514(c)(2) for a certification that the protest is not being filed collusively to extend another authorized person's time to protest, we note that a timely protest was filed on behalf of the importer.

Section 504(a), Tariff Act of 1930, as amended (19 U.S.C. 1504(a) Supp. 1993), provides that if Customs fails to liquidate an entry within one year from the date of entry or final with- drawal from warehouse, that entry is deemed liquidated at the rate of duty, value, quantity, and amount of duties asserted at the time of entry by the importer. See American Permac, Inc. v. United States, 10 CIT 535, 642 F. Supp. 1187 (1986) n. 12 at 1195: "The amount of duties 'asserted at the time of entry by the importer', within the meaning of section 1504(a) and (d), is not what the importer desires to assert upon entry, but what the importer is required by Customs officers to assert when filing the entry summary. See also, 19 C.F.R. 159.11(a) and 159.12(f); Detroit Zoological Society v. United States, 10 CIT 133, 630 F. Supp. 1350, 1355 n. 9 (1986)."

However, under 19 U.S.C. 1504(b) (as amended by Pub. L. 103-182, 107 Stat. 2057), Customs may extend the one-year liqui- dation period by providing notice to the importer and the surety, on one of the following two grounds: (1) if "information needed for the proper appraisement or classification of the merchandise, or for insuring compliance with applicable law, is not available to the Customs Service"; or (2) if "the importer of record requests such extension and shows good cause therefor." Section 159.12(e), Customs Regulations, states that extensions may be granted by the district director for a total not to exceed 3 years. Therefore, liquidation of an entry must take place within 4 years from the time of entry unless liquidation continues to be suspended by court order or if required by statute.

Protestant alleges that the entries are deemed liquidated by operation of law because all information needed for the proper appraisement and classification was available during the one year period.

Entry no. 14201051738 dated May 18, 1989 was a warehouse entry. The last withdrawal under this entry was dated October 12, 1989. Entry no. 14201058221 dated April 14, 1989 was also a warehouse entry. The last withdrawal under this entry was on October 26, 1989. Both of these entries were liquidated on July 20, 1990. Contrary to protestant's assertion, these entries are not deemed liquidated by operation of law. The statutory one- year limitation on liquidation does not start to run until the final withdrawal under a warehouse entry. Thus, for these two entries, their first year anniversary would have been in October of 1990. Both entries were liquidated within the required one- year period.

Regarding entry no. 14201058130 dated April 10, 1989 and liquidated on July 20, 1990, the ACS record also indicates that this was a warehouse entry. The final withdrawal under this entry was on October 26, 1989. The ACS record indicates that an extension notice was issued on June 30, 1990. The entry was liquidated on July 20, 1990, well within the one-year period. Therefore, although a proper notice of extension was issued, there was a timely liquidation of the entry before the statutory one-year period expired.

The entries subject to this protest are not deemed liqui- dated by operation of law because they were timely liquidated prior to the first anniversary. Accordingly, we now address the surety's claims which parallel and duplicate those of the import- er.

Classification

Classification of merchandise which is the subject of this Protest was addressed in HRL 950116 of December 7, 1993. We direct your attention thereto, and incorporate herein, our discussion of the merits of the case.

HOLDING:

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

Styles P4727, P4721, P3725, P3727, P3727MS, P4729MS

... under subheading 6210.40.1020, HTSUSA, textile category 634, as garments, made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907, other men's or boys' garments, of man- made fibers, other, anoraks (including ski-jackets), windbreakers and similar articles. The applicable rate of duty is 7.6 percent ad valorem.

Styles P3733, P3705, P3709, P4703

... if men's, under subheading 6201.93.3510, HTSUSA, textile category 634, as men's or boys' overcoats, carcoats, capes, cloaks, anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets), other than those of heading 6203, anoraks (including ski- jackets), windbreakers and similar articles (including padded, sleeveless jackets), of man-made fibers, other, other, other, other, men's. The applicable rate of duty is 29.5 percent ad valorem.

... if boys', under subheading 6201.93.3520, HTSUSA, textile category 634, as men's or boys' overcoats, carcoats, capes, cloaks, anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets), other than those of heading 6203, anoraks (including ski- jackets), windbreakers and similar articles (including padded, sleeveless jackets), of man-made fibers, other, other, other, other, boys'. The applicable rate of duty is 29.5 percent ad valorem.

The Protests should be denied in part and granted in part as follows:

Protest Number Style # Results of Style # Disposition of Protest
5301-91-000044 P3705 Uncoated Denied in Part P3709 Uncoated and Granted in
P3725 Coated Part
P3727 Coated
P3727MS Coated
P3729 Coated
P3733 Uncoated
P4703 Uncoated
P4721 Coated
P4727 Coated
P4729 Coated
P4729MS Coated

In accordance with Section 3A(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 the mailing of the decision. Sixty days from the date of the decision the Office of Regulations & Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS, and to the public via the Diskette Subscription Service, Lexis~, Freedom of Information Act, and other public access channels.

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is imported. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.

Sincerely,

John Durant, Director
Commercial Rulings Division


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