Protest Decision Wasn't 'Interpretive Determination,' US Says in Bid to Toss Customs Suit on Pop-Up Tents

A protest approval relied on in a customs complaint from importer Under the Weather wasn't a "prior interpretive ruling" that CBP had to publish and revoke under 19 U.S.C. § 1625(c)'s notice-and-comment procedures before issuing a headquarters ruling on pop-up tents, the U.S. argued. Filing a partial motion to dismiss, the government claimed that only "interpretive determinations with prospective effect" qualify for the statute's "procedural safegurads" (Under the Weather v. United States, CIT # 21-00211).

The protest approval cited by Under the Weather is a "one-sentence determination that applied solely to the protested entries and did not mention the law or merchandise at issue" and doesn't stand as an interpretive ruling that required CBP to approve the later protest subject to this case. As such, the U.S. moved to dismiss one count of the complaint.

Under the Weather argued that it imported its tents designed for backpacking under Harmonized Tariff Schedule subheading 6306.22.1000, free of duty, as backpacking tents, until CBP reclassified them under subheading 6306.22.9030. This subheading covers "other" tents, dutiable at 8.8%. The importer filed a protest arguing that the tents satisfy all the criteria for backpacking tents. CBP granted the protest in 2019, allowing Under the Weather to import the tents under its preferred subheading.

The next year, CBP told the importer that the tents were properly classified under subheading 6306.22.9030, while failing to address the prior protest. Under the Weather filed another protest. CBP denied this protest, then issued a headquarters ruling on the tents, also finding that the prior protest was not a "decision" under 19 U.S.C. § 1625(c). The present lawsuit followed (see 2306260025).

In its motion to dismiss, the U.S. noted that the statute originally said that within 120 days after a "precedential decision" is issued, CBP had to publish it in the Customs Bulletin or otherwise make it available. The Customs Modernization Act later amended this law by requiring CBP to use notice-and-comment procedures to modify or revoke a "prior interpretive ruling or decision." This phrase replaced "precedential decision." To figure out whether a CBP action is an "interpretive ruling or decision," the question is whether the decision lays out rules for importers to follow, the brief said.

"That standard cannot be met here," the U.S. claimed. Case law establishes that Section 1625 only applies to "interpretive" decisions and not "entry-specific, non-interpretive determinations," the brief said. The original protest was not equivalent to an interpretive ruling since it "lacked prospective effect, interpreted nothing, and was not plausibly the result of [CBP's] considered deliberations."

The protest ruling only applied to the covered entries. "For this reason alone, revocation of the protest approval was not required under § 1625(c), and Count II of Under the Weather’s complaint fails as a matter of law," the brief said.