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HQ 961213

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January 30, 1998

CLA-2 RR:TC:TE 961213 jb

CATEGORY: CLASSIFICATION

Gail T. Cumins, Esq.
Sharrets, Paley, Carter & Blauvelt, P.C.
67 Broad Street
New York, NY 10004

RE: Claim for detrimental reliance; "Hydro Fleece" garments

Dear Ms. Cumins:

On January 6, 1998, this office issued HQ 960450, in response to your application for further review of protest number 4503-96-100026, on behalf of your client, Browning Arms Division, regarding the classification of certain Hydro Fleece garments. This letter is in response to the claim of detrimental reliance addressed by you in that letter.

FACTS:

The merchandise that was the subject of the protest addressed in HQ 960450 consists of hunting garments comprised of jackets, pants and bib overalls, made from a knit fabric laminated to a plastic Goretex membrane. This material is described as "Hydrofleece". As confirmed by a Customs Laboratory report these garments are of knit pile construction and are properly classified in the appropriate subheadings of Chapter 61, HTSUS.

You claim that as a result of the importation history of this merchandise (previously detailed in HQ 960450), your client relied to his detriment on Customs classification of this merchandise in Chapter 62, HTSUS, when it purchased and sold the garments covered by the entries under the protest addressed in HQ 960450. Accordingly you are seeking relief on behalf of your client for those entries.

ISSUE:

Whether the Protestant has substantiated the claim for "detrimental reliance"?

LAW AND ANALYSIS:

As provided for under 19 CFR 177.9(e)(1):

The Customs Service will from time to time issue a ruling letter covering a transaction or issue not previously the subject of a ruling letter and which has the effect of modifying the treatment previously accorded by the Customs Service to substantially identical transactions of either the recipient of the ruling letter or other parties. Although such a ruling letter will generally be effective on the date it is issued, the Customs Service may, upon application by an affected party, delay the effective date of the ruling letter, and continue the treatment previously accorded the substantially identical transaction, for a period of up to 90 days from the date the ruling letter is issued.

CFR 177.9(e)(2) states:

In applying to the Customs Service for a delay in the effective date of a ruling letter described in paragraph (e)(1) of this section, an affected party must demonstrate to the satisfaction of the Customs Service that the treatment previously accorded by Customs to the substantially identical transactions was sufficiently consistent and continuous that such party reasonably relied thereon in arranging for future transactions. The evidence of past treatment by the Customs Service shall cover the 2-year period immediately prior to the date of the ruling letter, listing all substantially identical transactions by entry number (or other Customs assigned number), the quantity and value of merchandise covered by each such transaction (where applicable), the ports of entry, and the dates of final action by the Customs Service. The evidence of reliance shall include contracts, purchase orders, or other materials tending to establish that the future transactions were arranged based on the treatment previously accorded by the Customs Service.

Based upon your submission, the following is established:

1. All references to this merchandise on the invoices indicate that the garments are of knit construction;

2. Samples were presented to the Customs laboratory for testing;

3. In 1995 your client protested entries which were classified in 6201 and 6211, HTSUS, based on a memorandum (HQ 081134, dated April 17, 1989) addressing woven garments with a Goretex lamination. This protest was granted by Customs and the classification of those garments was changed to 6210, HTSUS;

4. Importation of this merchandise has continued from 1992 through 1996.

The rules of law defining detrimental reliance are explicitly and clearly delineated in the Code of Federal Regulations as noted above. The critical elements in substantiating a claim for detrimental reliance are that the reliance was reasonable and that the importer suffered a detriment based on that reliance. Reliance is predicated on a ruling, issued to the importer or to a third party addressing identical or virtually identical merchandise, or consistent treatment. In the case before us your client does not satisfy all of these aforementioned elements.

First, although your client submitted samples of the garments to Customs, there was never any reliance on a Customs binding ruling which classified garments similar to the subject knit garments in a provision for woven garments. Secondly, it is clear that Customs erred when it examined the garments and determined that they were classified in chapter 62, HTSUS, despite the clear description on the invoices stating "polyester knitted fabric shell". Thereafter, subsequent importations of a variety of coated knit garments were entered by your client in headings 6201 or 6211, HTSUS. As such, when your client protested those classifications in headings 6201 or 6211, HTSUS, and asked for reclassification in heading 6210, HTSUS, based on HQ 081134 which addressed the classification of woven garments with a Goretex laminate, Customs believed the garments were woven garments and granted the protest. Although we are not trying to exonerate Customs completely for the confusion which occurred with this merchandise, this office is of the opinion that the importer should have cleared up the confusion at its onset. This issue does not involve complex issues of law, but simple facts- knit garments versus woven garments. Once the knit garments were classified in a provision for woven garments, giving the importer an advantage in the tariff rate, the importer should have corrected this oversight immediately and not continued to take advantage of an obvious error on the part of Customs. Based on these facts we find that the importer's reliance on the classification of knit garments in a provision for woven garments was not reasonable.

Consequently, your request for detrimental reliance is denied.

This action is being taken in accordance with 19 CFR 177.9(e)(1) and 19 CFR 177.9(e)(3). Any questions concerning this letter should be directed to the Textile Classification Branch, Office of Regulations and Rulings.

Sincerely,

John Durant, Director
Commercial Rulings Division

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