Sherry L. Singer, Esq.
Singer & Singh
469 Seventh Avenue, Suite 1300
New York, N.Y. 10018
RE: Detrimental Reliance on DD 877853; reclassification of
ladies' hooded pullover garment in heading 6211, HTSUSA;
reasonable reliance on a ruling is necessary for
detrimental reliance to apply; oral advice is not
binding; 19 CFR 177.9(d)(3); 19 CFR 177.1(b)
Dear Ms. Singer:
This is in reply to your letter dated May 21, 1993, on
behalf of your client, Regarde Bien, Ltd., in which you claim
that your client relied to its detriment on District Decision
(DD) 877853, dated September 25, 1992. Samples were provided to
this office for examination.
In Headquarters Ruling (HQ) 953251, dated February 8, 1993,
Customs revoked DD 877853 and reclassified a ladies' hooded
pullover garment in subheading 6211.42.0050, HTSUSA, which
provides for, among other things, women's or girls' cotton woven
shirts, excluded from heading 6206, dutiable at a rate of 8.6
percent ad valorem and subject to quota category 341. The
articles had previously been classified in DD 877853 in
subheading 6202.92.2060, HTSUSA, which provides for, among other
things, women's or girls' anoraks, windbreakers and similar
articles, of cotton, dutiable at a rate of 9.5 percent
ad valorem, and subject to quota category 335.
The samples you submitted for review are manufactured in
India and are referred to as Styles 5011 and 5022. Both styles
are virtually identical to those ruled upon for Angelique Imports
(hereinafter, "Angelique").
Style 5011 is made of a heavy cotton woven fabric and
features long sleeves with partially elasticized cuffs, a
drawstring at the bottom, a partial "V neck" opening secured by a
drawstring and two side pockets at the waist. The garment has a
hood and a partial lining that extends from the top of the hood
to the middle of the back.
Style 5022 is also made of a heavy cotton woven fabric and
features long sleeves with partially elasticized cuffs. The
cuffs have two buttons and flap closures. There is a braided
drawstring at the bottom of the garment with plastic bells at the
ends to prevent unravelling. The garment is hooded and has a
partial lining that extends from the top of the hood to the
middle of the back. The front of the garment has an opening that
extends half way down the front; it has a heavy zipper closure as
well as a placket closure that extends to the bottom of the
garment. The garment is closed by a 2-1/2 inch flap along with
two large buttons. In addition, the garment has two side
pockets.
The revoked ruling to which you refer, that is, DD 877853,
was issued to Angelique. In a subsequent ruling issued to that
importer (HQ 953251, dated February 8, 1993), it was determined
that, based on purchase agreements and an established pattern of
liquidation verifying the same, Angelique had reasonably relied
to its detriment on the classification determination and
applicable quota category set forth in DD 877853.
Under 19 CFR 177.9(d)(3), the effective date of a ruling
letter that revokes an earlier ruling may be delayed for a period
of up to ninety days, provided that the party seeking delay can
demonstrate to the satisfaction of the Customs Service that
reliance on the revoked ruling was reasonable and such reliance
was detrimental.
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 material tending to establish that the future
transactions were arranged based on the treatment previously
accorded by the Customs Service. (Emphasis added)
CFR 177.1(b) states:
The Customs Service will not issue rulings in response to
oral requests. Oral Opinions or advice of Customs Service
personnel are not binding on the Customs Service.* * *
Based upon your submission, several factors were made clear:
1. Your client sent a sample garment to its customs
broker. In August of 1992, the customs broker obtained
oral advice from a team member in New York regarding
the classification of the garment. As was confirmed in
the affidavit submitted by your client, based on that
oral advice, your client advised his suppliers in India
and imported the merchandise.
2. On September 25, 1992, Customs issued Angelique a
binding ruling.
3. Your client has made approximately eighty entries of
this type of garment, covering the period of July, 1992
through December, 1992. In all, over 250,000 pieces of
this type of garment were imported by your client and
cleared by Customs.
The rules of law defining detrimental reliance are
explicitly and clearly delineated in the Customs Federal
Regulations as noted above. In making a finding for detrimental
reliance there are several requisite criteria which must be
found, namely they are as follows:
1. reliance on a ruling; the ruling may be issued to the
originating party or to a third party, but there must
be reliance by that party on that ruling
2. the reliance was reasonable
3. as a direct consequence of that reasonable reliance the
party suffered to his/her detriment
In the case before us your client lacks two of the three
requisite criteria. Based on your client's own affidavit, there
was never any reliance on a Customs binding ruling. He obtained
oral advice regarding the classification of the merchandise in
August, and as the liquidated entries show, he had already begun
importing the merchandise in July. Angelique was not issued a
ruling until a month after your client obtained oral advice and
two months after he had already begun importing the merchandise
in July.
Additionally, it is the opinion of this office that though
your client began importing the merchandise in July, the five
months which span the importation, i.e. from July of 1992 to
December of 1992, when he received the redelivery notices, do not
constitute a continuous and consistent pattern of liquidation for
detrimental reliance to apply. Finally, as is clearly stated by
the Customs Regulations, any oral advice obtained by the Customs
Service personnel is not binding on the Customs Service. It is
for this reason that the Customs Service has an official ruling
program.
Consequently, your request for detrimental reliance is
denied.
This action is being taken in accordance with 19 CFR
177.9(d)(3) 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