Previous Protest Approvals Are 'Decisions' Requiring Notice to Overturn, Tent Importer Argues at CIT

Pop-up tents designed for backpacking should be duty-free "backpacking tents" instead of other" tents, Ohio-based tent importer Under the Weather (UTW) said in its June 23 complaint at the Court of International Trade. The company is challenging CBP's classification of its imported tents at a higher duty rate than the company had used for eight years and despite an earlier protest approval that seemed to have affirmed UTW's preferred classification (Under the Weather v. U.S., CIT # 21-00211).

UTW said it has imported the tents since 2010 under subheading 6306.22.1000 as duty-free backpacking tents until September 2018, when CBP reclassified 12 of the entries under subheading 6306.22.9030 as "other" tents with an 8.8% duty rate following a notice of action taken. UTW filed a protest in 2019, arguing that the tents "satisfy all of the criteria for backpacking tents specified in Treasury Decision 86-163," which requires backpacking tents to be “specially designed for the sport of backpacking,” composed of nylon, polyester, or any other fabric of man-made fibers, and meet certain enumerated criteria for floor area, overall weight, and carry size.

CBP granted the protest later that year and UTW continued importing the tents under its duty-free classification. UTW had submitted an Application for Further Review, which was never acted upon because the protest was approved by CBP. Late in 2019, CBP issued a request for information over a separate entry, which UTW said consisted of pop-up backpacking tents of the same models that were reviewed in the approved protest earlier that year.

In January 2020, CBP issued a notice of proposed action on 22 entries of UTW's tents. In the notice, CBP stated that the tents were properly classifiable under subheading 6306.22.9030 and didn't address the previously approved protest. In a conversation with CBP personnel, UTW said it was advised that a National Import Specialist intended to classify UTW’s pop-up tents under 6306.22.9030 "without regard to the decision issued in Protest 2704-19-102919."

UTW filed another protest in May 2020 arguing that classifying the tents under subheading 6306.22.9030 with regard to the protested merchandise would violate 19 U.S.C. § 1625(c), which states that a decision that has been in effect for at least 60 days cannot be modified or revoked until 60 days after completion of notice and comment procedures specified in that provision.

CBP denied that protest and issued headquarters ruling H311492 in October 2020. The ruling argued, among other things, that CBP’s approval of UTW's protest was not a “decision” within the meaning of 19 U.S.C. § 1625(c).