CBP Rulings Are 'Prior Interpretive Decisions,' Require Notice Before Change, Importer Says

A CBP headquarters decision on a protest is a “prior interpretive ruling or decision" that Ohio-based tent importer Under the Weather should have been able to rely on for tariff classification purposes, and as a result its classification challenge on backpacking tents shouldn't be dismissed, the importer told the Court of International Trade in a Oct. 26 brief at the Court of International Trade (Under the Weather v. U.S., CIT # 21-00211).

UTW argued against the dismissal of a count in its complaint that alleged CBP's classification of its tents under Harmonized Tariff Schedule subheading 6306.22.9030 was prohibited by 19 U.S.C. 1625(c)(1), which requires that any proposed ruling that would modify or revoke a prior “interpretive ruling or decision" must be published in the Customs Bulletin and comments solicited.

In its September motion to dismiss, DOJ argued that the protest wasn't a "prior interpretive ruling," calling it instead a "one-sentence" determination that applied solely to the protested entries and didn't mention the law or merchandise at issue (see 2309250025).

UTW said that DOJ conflated the language of § 1625(a) and §1625(c) "in ways that muddle[d] the purpose and meaning of both provisions." While only an “interpretive ruling … or protest review decision” needed to be published in the Customs bulletin pursuant to § 1625(a), any “prior interpretive ruling or decision” is subject to notice and comment requirements pursuant to § 1625(c), UTW argued.

The 2018 ruling “made a different classification decision" from the protest regarding "identical merchandise,” UTW said. That ruling “effectively revoked the prior decision of the protest without following the notice and comment requirements.

UTW said it imported the tents under HTS subheading 6306.22.1000 as duty-free "backpacking tents" from 2010. In September 2018 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, which required the 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 (see 2306260025). The government has not challenged the classification argument, which is the primary count of the complaint.