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HQ 967181




June 30, 2004

CLA-2 RR:CR:TE 967181 KSH

CATEGORY: CLASSIFICATION

TARIFF NO.: 6110.20.2065

Port Director

Customs and Border Protection
Port of Norfolk
101 East Main Street
Norfolk, VA 23510

RE: Protest number 1401-03-100226; Oved Apparel v. United States;

Dear Port Director:

This is in reply to your memorandum dated April 7, 2004, concerning the Protest and Application for Further Review (AFR), Protest No. 1401-03-100226, filed by Grunfeld, Desiderio, Lebowitz, Klestdat LLP on behalf of their client, Nautica International, Inc.

The protest is against Customs and Border Protection’s (CBP) classification of one entry of boy’s knit garments under subheading 6110.20.2065 of the Harmonized Tariff Schedule of the United States (HTSUS).

Protestant entered the merchandise subject to this protest free of duty in subheading 9819.11.12, HTSUS. However, the merchandise was liquidated under subheading 6110.20.2065, HTSUS, dutiable at 17.3% ad valorem. Liquidation of the entries occurred on July 25, 2003.

Protestant filed a protest with an application for further review on September 24, 2003, challenging the decision of the Port Director not to accord the merchandise the benefits of the African Growth and Opportunity Act (AGOA) and declining to liquidate the merchandise in subheading 9819.11.12, HTSUSA. The importer’s AFR request was approved. The protest was timely filed pursuant to 19 U.S.C. 1514 (c)(3) and 19 C.F.R. 174.12 (e)(1).

FACTS:

The garments in issue are boys’ knit polo shirts with flat knit collars and flat knit cuffs. They are composed of one hundred percent cotton. Samples have not been provided for review.

Protestant states that the fabric is imported in into Madagascar from Hong Kong. The collar fabric is imported into Madagascar from Hong Kong as a blanket of fabric consisting of individual rectangular panels separated by lines of demarcation. In Madagascar, the fabric is spread out on a table and cut along the lines of demarcation. A curved paper pattern is laid on top of the rectangular panel and the collar undergoes minor trimming and shaping. The components are assembled into finished garments in Madagascar. Photocopies of pictures showing the cutting process in Madagascar were submitted. The protest is against Customs and Border Protection’s (CBP) classification of three entries of men’s knit garments under subheadings 6105.10.0010 and 6110.20.2065 of the Harmonized Tariff Schedule of the United States (HTSUS).

ISSUE:

Whether Protest 2402-02-100083 satisfies the criteria for further review under 19 CFR §174.24.

LAW AND ANAYLSIS:

The issue presented in the instant protest, the classification under heading 6110, HTSUS, of boys’ knit shirts with knit to shape collars and cuffs, is currently pending in the Court of International Trade in the case of Oved Apparel v. United States, No. 04-00208.

Part V of the Customs Protest/Petition Processing Handbook explains the procedures to be followed when a protest is filed that involves issues which are pending in the Court of International Trade. It reads in pertinent part:

SUSPENSIONS

Lead protests and associated protests should only be suspended if there is a test case before the Court of International Trade (CIT), an AFR has been granted, or an internal advice request is before Headquarters on the exact same issue.

If after review of a protest where a test summons pending before the CIT is cited as the basis for the protest, the review team determines it is a valid claim, the entry unit must enter the test summons number into the "Test Summons No." data field, enter "S" for suspension into the "Protest Status" field, the date in the “Date” field, and enter process status code “SU2” (PMAC).

Moreover, Section 177.7 of the Customs Regulations (19 C.F.R. §177.7) provides that rulings will not be issued in certain circumstances. Section 177.7(b) reads in pertinent part:

No ruling letter will be issued with respect to any issue which is pending before the United States Court of International Trade, the United States Court of Appeals for the Federal Circuit or any court of appeal therefrom.

In light of the prohibition set out in Part V of the Customs Protest/Petition Processing Handbook and in 19 C.F.R. §177.7(b), we are unable to rule on the AFR at this time.

HOLDING:

In accordance with section V of the Customs Protest/Petition Processing Handbook, we are administratively closing our file and referring the matter back to your office to be held in suspension pending the court’s determination in the Oved Apparel case. At that time, your office should rule on the protest in accordance with the judgment order of the CIT, pursuant to 19 CFR §152.16. If the Court’s decision fails to definitively resolve the issue of the classification of the articles herein, i.e., questions remain regarding application of the court’s decision to the instant merchandise, then forward the protest and AFR to this office for resolution at that time.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division


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