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HQ 966645




November 6, 2003

CLA-2 RR:CR:TE 966645 RH

CATEGORY: CLASSIFICATION

TARIFF NO.: 6104.63.2011

Ms. Grace Lee
Accountant
Fera International Corporation
3521 Challenger Street
Torrance, CA 90503

RE: Classification of a Ski Pant, Style number 21305; 19 U.S.C. §1625; Treatment; 19 CFR 177.12

Dear Ms. Lee:

This is in reply to your letter of July 23, 2003, asking that the effective date of New York Ruling Letter (NY) J81642 be extended until December 15th, 2003.

FACTS:

On April 12, 2002, Customs (now Customs and Border Protection (CBP)) conducted a preclassification review at your company’s premises of various items, including the ski pants at issue. CBP issued the final preclassification decision (PC I80703) on May 14, 2002. In PC I80703, the ski pants (style 21305) were classified under subheading 6211.43.0091 of the Harmonized Tariff Schedule of the United States (HTSUS), as “other garments.”

On February 26, 2003, your Customs broker submitted a ruling request concerning the classification of the same ski pants (style 21305). On July 3, 2003, CBP issued NY J81642, classifying the garment under subheading 6104.63.2011, HTSUS, as women’s knitted trousers of synthetic fibers.

In your letter of July 23, 2003, you ask that the effective date of NY J81642 be extended until December 15th, 2003 “due to detrimental reliance.” You state that in all previous years of importation, the ski pants have been classified under subheading 6211.43.0091, HTSUS. Moreover, you state that the new classification will result in tremendous financial hardship to your company due to the textile category change and the drastic increased duty rate from 16 percent to 28.4 percent. In addition, you state that the factory has already purchased category 659 visas for your upcoming shipments.

We note that your claim for “detrimental reliance” does not challenge the classification of the garments set forth in NY J81642, under subheading 6104.63.2011, HTSUS.

ISSUE:

Is the importer entitled to a delayed effective date with regard to the issuance of NY J81642?

LAW AND ANALYSIS:

“Detrimental reliance” was a term used under 19 CFR 177.9(d)(3), which has been superceded by section 625 of the Tariff Act of 1930, as amended, 19 U.S.C. §1625 (1994). The new statute (19 U.S.C. § 1625(c)) reads, in relevant part:

A proposed interpretive ruling or decision which would –
modify (other than to correct a clerical error) or revoke a prior interpretive ruling or decision which has been in effect for at least 60 days; or
have the effect of modifying the treatment previously accorded by the Customs Service to substantially identical transactions;
shall be published in the Customs Bulletin. . .The final ruling or decision shall become effective 60 days after the date of its publication.

Initially, we note that the procedures set forth in section (c)(1) to 19 U.S.C. 1625 (19 U.S.C. §1625(c)(1)) are not applicable to preclassification decisions. As we have previously held, a preclassification determination is not binding on merchandise not specifically covered by it, and is not a prior interpretive ruling or decision. Preclassification determinations are not full-text rulings issued under the authority of 19 CFR Part 177, and are not published or otherwise made
available to the public. Accordingly, the issuance of NY J81642 did not trigger the notice and comment provisions of 19 U.S.C. §1625(c)(1). See Pre-Importation Review Program, An Overview for the Trade Community.

While a preclassification decision is not an interpretative ruling subject to the modification and/or revocation procedures set forth in 19 U.S.C. §1625(c)(1), it may be evidence of a treatment under 19 U.S.C. §1625(c)(2). To substantiate a claim for treatment under 19 U.S.C. §1625(c)(2), CPB requires evidence of a consistent classification treatment by it on identical or substantially identical transactions. Section 177.12(c), Customs Regulations (19 CFR 177.12(c)) reads, in relevant part:

Treatment previously accorded to substantially identical transactions – (1) General. The issuance of an interpretive ruling that has the effect of modifying or revoking the treatment previously accorded by Customs to substantially identical transactions must be in accordance with the procedures set forth in paragraph (c)(2) of this section. The following rules will apply for purposes of determining under this section whether a treatment was previously accorded by Customs to substantially identical transactions of a person:

There must be evidence to establish that: There was an actual determination by a Customs officer regarding the facts and issues involved in the claimed treatment; The Customs officer making the actual determination was responsible for the subject matter on which the determination was made; and Over a 2-year period immediately preceding the claim of treatment, Customs consistently applied that determination on a national basis as reflected in liquidations of entries or reconciliations or other Customs actions with respect to all or substantially all of that person’s Customs transactions involving materially identical facts and issues;

In this case, the only evidence you submitted in support of a claim of treatment for classification of the ski pants under subheading 6211.43.0091, HTSUS, is the issuance of PC I80703 on May 14, 2002. The information provided to CBP at the time of the preclassification review was that the garments were woven ski bibs composed of 95 percent nylon, 5 percent polyester, and that they were coated with polyurethane. Based on that information, the garments were correctly classified under subheading 6211.43.0091, HTSUS.

With the subsequent issuance of NY J81642, CBP examined a sample of the merchandise and determined that it had an outer surface composed of 91 percent nylon and 9 percent polyurethane woven fabric, which was bonded to an inner layer of weft knit pile fabric.

Section 177.12(c)(iii)(C) states that Customs will not find that a treatment was accorded to a person’s transactions if:

The person made a material false statement or material omission in connection with a Customs transaction or in connection with the review of a Customs transaction and that statement or omission affected the determination on which the treatment claim is based;

The CBP laboratory analysis of the ski pants revealed that you did not provide a complete and accurate description of the garments at the time of issuance of the preclassification decision. You omitted the fact that the garments contained an inner layer of weft knit pile fabric. This was a material omission of fact affecting the classification of the garments. CBP has held that an omission of relevant facts in connection with a preclassification decision renders the ruling void ab initio (i.e., null from the beginning). See HQ 964923, dated March 30, 2001. Accordingly, the classification concerning the ski pants (style 21305) in PC I80703 is void ab initio. Therefore, we find that NY J81642 did not cover substantially similar merchandise or modify the treatment previously accorded by CBP to transactions liquidated in accordance with PC I80703.

Finally, in the spirit of "informed compliance" and "shared responsibility" we wish to advise you that the material facts described in a ruling letter may be subject to periodic verification by the Customs Service when the merchandise is imported. If it is determined that an importer has failed to exercise "reasonable care" in providing Customs with information to enable it to properly classify merchandise, assess duties, collect accurate statistics and determine whether any other applicable legal requirement is met, Customs may initiate a penalty action and/or assess liquidated damages under the appropriate Customs regulatory or statutory provisions. Moreover, any false statements or representations may lead to prosecution under 18 U.S.C. §1001.

HOLDING:

Fera International Corporation has not established a treatment under 19 U.S.C. §1625(c)(2), and is not entitled to the delayed effective date set forth in that statute.

NY J81642, dated July 3, 2003, reflects the official position of CBP. That ruling classified the ski pants under subheading 6104.63.0091, HTSUS.

Sincerely,

Myles B. Harmon
Director, Commercial Rulings Division

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