CLA-2:OT:RR:CTF:TCM H024861 JRB

Tariff No.: 6204.69.9010

Port Director
Port of Philadelphia
2nd & Chestnut Streets
U.S. Customs House, Room 102
Philadelphia, Pennsylvania 19106

RE: Application for further review of protest number 1101-08-100108; Women’s Jeans; Cotton Restraint

Dear Port Director:

This letter is in reply to your memorandum, dated March 7, 2008, forwarding protest and application for further review number 1101-08-100108, dated December 20, 2007, timely filed by counsel on behalf of its client, Lazeon Corporation (protestant). The protest is against Customs and Border Protection’s (CBP) classification and subsequent notice to redeliver of women’s trousers subject to cotton restraints under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

On September 10, 2007, protestant imported into the U.S. several styles of jeans: DB13922-CYB570; DB13923-FBB422; DB13923-FBB422R; 109A JR; 102A JR; 111JR; 107A JR; 2601JR; 2602JR; 109A PL; 102A PL; 111PL; and 107A PL. At that time, protestant claimed that the stated components were 56% ramie, 30% cotton, 13% polyester, and 1% spandex. On September 18, 2007, CBP issued a Request for Information, which stated the goods were being given a conditional release pending CBP Laboratory results. Around this time, CBP took samples of two pairs of jeans and sent them to the CBP Laboratory in Savannah, Georgia. On September 25, 2007, the goods were entered under subheading 6204.69.9044, textile category 847 of the HTSUSA.

On November 20, 2007, CBP Laboratory Report SV20072698 reported that Toxic Jeans Style 111JR had the following composition by weight (average of two tests): 39% Ramie, 37% Cotton, 22% Polyester, and 2% Spandex. CBP Laboratory Report SV20072699 reported that Love and Kisses by Younique Jeans style DB13923-PPB Royal had the following composition by weight (average of two tests): 44% Ramie, 31% Cotton, 23% Polyester, and 2% Spandex. After following up with the CBP Laboratory it was determined that the style number for the Loves and Kisses Jeans tested was DB13923-FBB 422R.

On December 20, 2007, Lazeon, through its attorney, submitted the instant protest challenging the demand for redelivery. On March 6, 2008, counsel for the protestant submitted an amended protest that included an Application for Further Review (AFR). The protestant argued that the CBP Laboratory results were questionable in light of independent laboratory results that it submitted with its protest. The protestant stated that it requested CBP to send samples from the shipment to SGS Laboratories in Rutherford, New Jersey. A Philadelphia port official confirmed that the port sent two jeans from the shipment to the SGS laboratory. SGS then reported that the fiber content of the two jeans was: Sample A 51.2% Ramie, 24.3% Cotton, 23.3% Polyester, and 1.2% Spandex; Sample B 50.6% Ramie, 24.5% Cotton, 23.2% Polyester, and 1.7% Spandex. We would note that the SGS report does not indicate the name or style number of the jeans tested. In addition to the laboratory report from SGS, the protestant also submitted two reports from Vartest Laboratory. The Vartest report titled “Lazeon – A012908A”, for jeans with a style number DB13923- FBB422, indicates that this pair of jeans has the following compositions by weight: 54.55% Ramie, 24.50% Polyester, 20.10% Cotton, and 0.85% Spandex. This report also indicates that “cortical matter present rendering classification difficult.” The second Vartest report, titled “Lazeon – A012908B”, for jeans with a style number 102A PL, indicates that these jeans have the following compositions by weight: 56.11% Ramie, 24.09% Polyester, 18.92% Cotton, and 0.88% Spandex.

ISSUE:

Do the subject jeans contain a cotton component or a combination of a cotton component and man-made fiber equal to or exceeding 50%, subjecting them to cotton restraints classification in subheading 6204.69.9010, HTSUSA?

LAW AND ANALYSIS:

The demand for redelivery to customs custody is subject to protest under 19 U.S.C. §1514(a) (4). The protest was timely filed, within 180 days of the Notice for Redelivery.  (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2) (B) (ii), (iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006)). In addition, Further Review of Protest No. 1101-08-100108 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24 because the decision against which the protest was filed involves specific factual questions that have not been the subject of a Headquarters ruling or court decision.

Merchandise imported into the United States is classified under the HTSUSA. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUSA and are to be considered statutory provisions of law for all purposes.

GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to the GRIs.

The two HTSUSA subheadings that are under consideration are:

6204.69.9010 Women’s or girls’ suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear): Trousers, bib and brace overalls, breeches and shorts: Of other textile materials: Other… Trousers, breeches and shorts: Subject to cotton restraints (348)…

6204.69.9044 Women’s or girls’ suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear): Trousers, bib and brace overalls, breeches and shorts: Of other textile materials: Other… Trousers, breeches and shorts: Other: Trousers and breeches (847)…

Statistical Note 2(a) to Section XI of the HTSUSA provides in relevant part:

The term “subject to cotton restraints” means articles which: * * * (ii) The cotton and any wool, fine animal hair or man-made fibers in the aggregate equals or exceeds 50 percent by weight of all the component fibers thereof and the cotton component equals or exceeds the weight of each of the wool (including fine animal hair) and man-made fiber components.

Thus the rule on cotton restraints for our purposes is a two part test. First we determine if the cotton and man-made fiber components equal or exceed fifty percent of the total weight of the fabric. The CBP Laboratory report indicates that the jeans contain fifty percent or more cotton and man made fibers because one pair of jeans is made of 61% cotton and man-made fibers (Toxic Style Jeans contain 37% cotton, 22% Polyester, and 2% Spandex) and the other pair is made of 56% cotton and man-made fibers (Love and Kisses Jeans contain 31% cotton, 23% Polyester, and 2% Spandex). The second step of the test is to determine whether the cotton component equals or exceeds each of the man made fiber components. According to the CBP Laboratory reports, the cotton component exceeds the weight of the man-made fiber components in the jeans in both the Toxic Style Jeans (CBP Laboratory Report SV20072698) and the Love and Kisses Jeans (CBP Laboratory Report SV20072699). Therefore, the jeans are subject to the cotton restraints because the cotton and manmade fibers when added together account for over fifty percent of the weight of the fabric and the weight of the cotton component exceeds the weight of the two man-made fibers.

However, counsel for the protestant asserts that the jeans are not subject to the cotton restraints because independent laboratory reports indicate that the ramie component is greater than 50% and therefore does not meet the first part of the two part test. Counsel also asserts that the use of an average of tests is inappropriate because one or more of the individual tests may have indicated that the jeans were not subject to the cotton restraints.

"It is well settled that the methods of weighing, measuring, and testing merchandise used by [CBP] officers and the results obtained are presumed to be correct." Aluminum Company of America v. United States, 60 C.C.P.A. 148, 151, 477 F.2d 1396, 1398 (1973). Absent a conclusive showing that the testing method used by the CBP laboratory is in error, or that the CBP's laboratory results are erroneous, there is a presumption that the results are correct. See Exxon Corp. v. United States, 462 F. Supp. 378, 81 Cust. Ct. 87, C.D. 4772 (1978). In cases such as this, where an outside laboratory report is submitted that differs from the CBP laboratory report, the CBP laboratory report cannot be disregarded and takes precedence over the outside report. See, HQ 957282, dated March 28, 1995 (citing Customs Directive 099 3820-002, dated May 4, 1992). CBP cannot rely on outside reports that may or may not utilize different testing methods and still remain consistent in its tariff classification. Therefore, CBP must rely on its own laboratory analysis when determining the proper tariff classification of merchandise and need not consult an independent laboratory. See HQ 963748, dated November 20, 2000.

In determining whether or not a protestant has overcome CBP’s presumption of correctness, we look to American Sporting Goods v. United States, 259 F. Supp. 2d 1302, 1308-1309 (Ct. Int’l Trade 2003) where the court found that the importer successfully overcame the presumption of correctness when the importer raised questions on the precision of CBP’s tests; CBP was unable to point to any significant flaws in the importer’s test; and CBP’s laboratory reports indicated that the case was a close call.

Applying these factors to the present protest, this office contacted both the CBP Laboratory in Savannah, Georgia and the Port of Philadelphia on March 10, 2009 and March 13, 2009. The CBP Laboratory indicated that two different CBP Laboratory employees tested the samples to determine the ramie and cotton percentages. A CBP Laboratory Official confirmed that in all of the tests the results indicated that the jeans were subject to the cotton restraints. In addition, the CBP Laboratory Official indicated that the tests were performed using the Laboratory’s customary testing methods for these cases. Based on these statements from the CBP Laboratory in Savannah, Georgia, there is no indication that CBP used improper testing procedures on the subject jeans or any facts that would call into question the precision of CBP’s laboratory report. Further, the petitioner has not submitted any evidence to CBP indicating that the CBP Laboratory utilized improper testing methods or that the Laboratory employees improperly performed the tests.

The only scientific submissions that the protestant submitted were independent laboratory reports showing results for different styles of jeans than those tested by the CBP Laboratory. The Vartest report indicates that the jeans tested were style number DB13923 - FBB422 and style number 102A PL. The CBP Laboratory tested style numbers 111JR and DB13923 - FBB 422R. This fact could explain the difference between the laboratory results.

In addition, protestant claims that a separate CBP Laboratory report on a different shipment should also work to overcome the presumption of correctness of the CBP Laboratory in the protested shipment. On May 15, 2008, counsel for protestant submitted additional information to CBP on different shipments of the same type of jeans. These shipments were imported into the U.S. through the port in Newark, New Jersey. The Newark Port submitted samples from this shipment to the CBP Laboratory in Newark, New Jersey. The laboratory report for this second shipment found that the jeans were not subject to the cotton restraints. However, the protestant still has not shown that the method used by the Savannah Laboratory was in error or that its results were incorrect. There is no way for CBP to compare the laboratory results for two different shipments. The only fact that the various tests seems to prove is that the ramie and cotton content amongst the different styles of jeans varies considerably from one pair of jeans to the next pair in different shipments. Thus, the petitioner is unable to satisfy the first prong of the American Sporting Goods test.

The second factor that the court considered in American Sporting Goods was whether or not CBP was able to demonstrate that the importer’s laboratory reports were questionable. Id. In this case, the protestant has not submitted enough information for CBP to determine whether the importer’s laboratory reports were questionable. In particular, there is no information on the type of tests performed on the jeans. Furthermore, in Consolidated Cork Corp.; Milton Snedeker Corp. v. United States, the court noted that one of the criteria in determining the accuracy of a laboratory report is “whether the test has been established by an appropriate Government agency or is recognized by commercial laboratories or by the trade.” 54 Cust. Ct. 83 (1965). The independent laboratory results that the protestant submitted are not from a CBP accredited commercial laboratory pursuant to 19 C.F.R. § 151.12. As of March 16, 2009, no commercial laboratory has been accredited by CBP to perform testing on textile products.

The third factor that the court considered in American Sporting Goods is that the CBP laboratory report in that case indicated that the classification was a close call. 259 F. Supp 2d at 1309. In particular the court noted that “it is incumbent upon the Customs Service to recognize that in especially close cases—where even one of Customs’s own tests exceeds the 90 percent threshold—the agency has a special duty to ensure that its determinations are accurate and well substantiated.” Id. In this case none of CBP’s Laboratory results indicate that the cotton and man-made fiber content were low enough to make the case a close call. In fact the CBP Laboratory Reports indicate that the cotton and man-made fibers make up 61% and 56% of the weight of the jeans, which is well above the fifty percent threshold. In addition, as noted above, all of CBP’s laboratory tests indicated that the jeans were subject to the cotton restraints, which was not the case in American Sporting Goods. Id. at 1305. Finally, CBP’s Laboratory provided the petitioner with the benefit of the doubt by having two separate employees test the jeans. Thus, the petitioner has failed to indicate in any way that this case involves a close call that would call into question the accuracy of CBP’s determination.

As a result, classification of the subject merchandise is appropriate in subheading 6204.69.9010, HTSUSA, and the Port of Philadelphia properly issued a Notice to Redeliver because the protestant has failed to overcome the presumption of correctness given to CBP’s Laboratory Results.

HOLDING:

By application of GRI 1 and Statistical Note 2(a) to Section XI of the HTSUSA the subject jeans were properly classifiable in subheading 6204.69.9010, HTSUSA, as trousers subject to the cotton restraints. Thus, the Notice to Redeliver was appropriate. You are instructed to DENY the protest.

In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.CBP.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division