HQ 952078: Application for Further Review of Protest 5301-1-100293. Track suits; effective; date; ruling; regulations; delay

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 952078

                          March 3, 1993

CLA-2 CO:R:C:T  952078 HP

CATEGORY:  Classification

TARIFF NO.:   6202.93.4500; 6204.63.3000

Ms. Patricia McCauley
District Director
U.S. Customs Service
P.O. Box 52790
Houston, TX 77052

RE:  Application for Further Review of Protest 5301-1-100293. 
Track suits; effective; date; ruling; regulations; delay

Dear Ms. McCauley:

     This is in reply to your Memorandum PRO-2-H:C of June 18,
1992.  That memo transmitted for our consideration an Application
for Further Review of Protest 5301-1-100293.

FACTS:

     The merchandise at issue consists of women's woven, lined,
water resistant track suits.  On November 2, 1990, the protestant
entered 66 cartons of track suits as separates, under subheadings
6202.93.4500 (jackets) and 6204.63.3000 (pants), Harmonized
Tariff Schedule of the United States Annotated (HTSUSA).  These
subheadings each carry with them an applicable duty rate of 7.6%
ad valorem.  On April 3, 1991, you issued to the protestant a
Customs Form 29 Notice of Action, informing the protestant that
pursuant to a recently issued Headquarters ruling letter, the as
yet unliquidated Entry required a Rate Advance from 7.6% ad
valorem to 17% ad valorem.  On April 26, 1991, the Entry was
liquidated under heading 6211, HTSUSA.

ISSUE:

     Whether the merchandise was liquidated under the correct
tariff classification and corresponding duty rate under the
HTSUSA?

LAW AND ANALYSIS:

     Heading 6211, HTSUSA, provides for, inter alia, woven track
suits.  In HRL 084736 of June 13, 1989, we stated that

          Explanatory Note 61.12 provides, in pertinent
          part:

               (A)  Track suits, i.e., knitted articles
                    consisting of two pieces, not lined
                    but sometimes with a raised inner
                    surface (nap) which, because of
                    their general appearance and the
                    nature of the fabric, are clearly
                    meant to be worn exclusively or
                    mainly in the pursuit of sporting
                    activities.

          As a result, classification of [lined track
          suits] under Heading 6211, HTSUSA, is
          incorrect.

     On January 14, 1991, two months after importation and Entry
but more than three months prior to liquidation, Customs issued
to a third party HRL 087511.  In that letter,  Customs revoked
HRL 084736, ruling that track suits with a woven outer shell and
an inner lining capable of imparting the abilities to breathe and
wick away perspiration are classifiable as track suits under
heading 6211, HTSUSA.  Merchandise classified as such was
dutiable at a rate of 17% ad valorem.

     Section 177.9(a) of the Customs Regulations (19 C.F.R.
 177.9(a)), states that

          [a] ruling letter issued by the Customs
          Service ... represents the official position
          of the Customs Service with respect to the
          particular transaction or  issue described
          therein and is binding on all Customs Service
          personnel in accordance with the provisions
          of this section until modified or revoked. 
          In the absence of a subsequent change of
          practice or other modification or revocation
          which affects the principle of the ruling set
          forth in the ruling letter, that principle
          may be cited as authority in the disposition
          of transactions involving the same
          circumstances.

The protestant has argued that at least since the issuance of HRL
084736, and until the issuance of HRL 087511, Customs has
consistently classified woven, lined track suits as separates. 
Relying upon this and other rulings, protestant states that it
"ordered, imported and sold these water-resistant track suits
with linings, prior to the effective date of HQ 087511...."  As
evidence of this, protestant has submitted various documents from
the transaction at issue, all dated before January 14, 1991. 
Therefore, protestant claims that had the Entry been liquidated
at the Entry date (November 2, 1990), and not almost five months
later, HRL 084736's lower duty rate would have been applicable.

     Section 177.9(a), supra, continues by stating that "a ruling
is effective on the date it is issued and may be applied to all
entries which are unliquidated...."  Emphasis added.  Since the
Entry at issue was legitimately liquidated after the effective
date of HRL 087511, the finding in HRL 084736 is not be effective
for protestant's merchandise.  Accordingly, this Protest should
be Denied.

     Please note that pursuant to Section 177.9(d)(3), Customs
Regulations, we have, in a separate correspondence, granted to
protestant a delay in the effective date of HRL 087511.

HOLDING:

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

Jackets

     ... under subheading 6211.43.0050, HTSUSA, textile category
     635, as track suit jackets of man-made fibers.  The
     applicable rate of duty is 17 percent ad valorem.

Trousers

     ... under subheading 6211.43.0040, HTSUSA, textile category
     648, as track suit trousers of man-made fibers.  The
     applicable rate of duty is 17 percent ad valorem.

     You are instructed to Deny the protest in full.  A copy of
this decision should be forwarded to the protestant, or
protestant's counsel, as part of the Notice of Action.

                           Sincerely,



                      John Durant, Director
                   Commercial Rulings Division