CLA-2 OT:RR:CTF:TCM H250700 PJG
Port Director, Service Port - Norfolk-Newport News
101 E. Main Street
Norfolk, VA 23510
RE: Application for Further Review of Protest No. 1401-13-100060; Women’s Trousers
Dear Port Director:
This is in reference to the Application for Further Review (“AFR”) of Protest No. 1401-13-100060, timely filed on March 20, 2013, by Robert B. Silverman of the law firm Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt, LLP, on behalf of Jones Jeanwear Group, Inc. (“Protestant”) concerning the classification of three styles of women’s trousers under the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
This AFR concerns the tariff classification of three styles of women’s trousers imported in two entries. The style numbers are LJ-205940R, LJ-205944R, and LJ-20594R and each style was entered in two colors (Bermuda Alpine Wash and Light Vintage) and three lengths (regular, long, and short). The first entry was made on November 10, 2011 and liquidated on September 21, 2012 and the second entry was made on November 23, 2011 and liquidated on October 5, 2012. The merchandise was entered and liquidated under subheading 6204.62.40, HTSUS, as women’s trousers of cotton. Protestant timely filed this Protest and AFR on March 20, 2013, claiming classification under subheading 6204.69.90, HTSUS, which provides for women’s trousers of other textile materials.
In support of its AFR, Protestant submitted Entry Summaries, purchase orders, fabric mill invoices, garment invoices, fabric content labels, and four independent laboratory reports, dated March 1, 2013, from the Consumer Testing Laboratories (“CTL”) all indicating that the women’s trousers were of chief weight ramie. Specifically, CTL Laboratory Report No. ARSL0290038 concerned style # LJ-205940R and indicates that the trousers are constructed of 57% ramie, 29% cotton, 13% polyester, and 1% spandex. CTL Laboratory Report No. ARSL0290042 concerned the same style number and indicates that the trousers are constructed of 57% ramie, 30% cotton, 12% polyester, and 1% spandex. CTL Laboratory Report No. ARSL0290034 concerned style # LJ-205944R and indicates that the trousers are constructed of 51% ramie, 33% cotton, 13% polyester, and 3% spandex. CTL Laboratory Report No. ARSL0290046 concerned style # LJ-20594R and indicates that the trousers are constructed of 55% ramie, 29% cotton, 14% polyester, and 2% spandex. The four laboratory reports indicate that the Labeled Fiber Content on each of the samples was 54% ramie, 31% cotton, 14% polyester, and 1% spandex. The Protestant also submitted jean samples with paper tags identifying the material numbers and style description.
Samples related to the entry made on November 10, 2011 were sent to the CBP laboratory in Savannah, Georgia to determine the material composition of the sample. In CBP Laboratory Report No. SV20131598, issued on July 24, 2013, the CBP laboratory reported that “[t]he sample consists of pieces cut from women’s blue denim pants” and it was “composed of 40% ramie, 44% cotton, 14% polyester and 2% spandex”, by weight. The methods used to analyze the sample were CBP 50-01, CBPL 50-03, and CBPL 50-11.
Samples related to the entry made on November 23, 2011 were also sent to the CBP laboratory in Savannah, Georgia to determine the material composition of the sample. In CBP Laboratory Report No. SV20131599, the CBP laboratory reported that “[t]he sample consists of pieces cut from women’s blue denim pants” and it was “composed of 40% ramie, 45% cotton, 13% polyester and 2% spandex.” The methods used to analyze the sample were CBPL 50-01, CBPL 50-03, and CBPL 50-11.
On March 20, 2013, Protestant timely filed the instant protest and AFR. The protest and AFR were denied on July 30, 2013 on the basis of CBP laboratory results. The Protestant timely filed, on September 26, 2013, a request to set aside the denial of the AFR, pursuant to Section 1515 of the Tariff Act of 1930, Title 19, United States Code, Section 1515 (19 U.S.C. § 1515(d)). The Protestant also timely filed, on October 24, 2013, a request to void the denial of the protest, pursuant to 19 U.S.C. § 1515(c). On November 22, 2013, CBP issued a response and determined that the denial of the AFR would be set aside and the denial of the protest would be voided pursuant to 19 U.S.C. § 1515(c) on the basis that further review under 19 U.S.C. § 174.24(a) was appropriate because the port’s liquidation of the merchandise under subheading 6204.62.40, HTSUS, would be inconsistent with New York Ruling Letter (“NY”) N041401, if the merchandise subject to the contested entries was substantially similar to that of the ruling.
In 2014, the CBP Laboratory in Savannah, Georgia, amended its initial finding in CBP Laboratory Report No. SV20131598 and SV20131599, by issuing SV20131598A and SV20131599A, and noted in those amended reports that further analysis of the sample indicated that “the fiber diameters for the sample are outside the published values” in American Association of Textile Chemists and Colorists (“AATCC”) 20a, which is 30 to 70 microns, and therefore, the laboratory was “unable to verify the actual fiber content” of the sample. The methods used to analyze the sample were CBPL 62-09 and AATCC 20a. In 2016, the CBP Laboratory in Savannah, Georgia, further amended the two laboratory reports to clarify that it was not able “to verify the actual fiber content using the method as published.” The laboratory continued to support their 2011 findings concerning the composition of the samples.
ISSUE:
Whether the subject women’s trousers are constructed “Of cotton” and classified under subheading 6204.62.40, HTSUS, or if they are constructed “Of other textile materials” and classified under subheading 6204.69.90, HTSUS.
LAW AND ANALYSIS:
Initially, we note that the matter protested is protestable under 19 U.S.C.
§ 1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation for entries made on or after December 18, 2004. (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)).
Further Review of Protest No. 1401-13-100060 is properly accorded to Protestant pursuant to 19 CFR § 174.24(a) because the decision against which the protest was filed is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise.
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.
The 2011 HTSUS provisions under consideration are as follows:
6204 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:
6204.62 Of cotton:
Other:
Other:
6204.62.40 Other
Other:
Women’s trousers and breeches:
6204.62.4011 Blue denim
* * *
6204.69 Of other textile materials:
* * *
6204.69.90 Other
Subheading Note 2 to Section XI, HTSUS, which includes Chapter 62, states as follows:
(A) Products of chapters 56 to 63 containing two or more textile materials are to be regarded as consisting wholly of that textile material which would be selected under note 2 to this section for the classification of a product of chapters 50 to 55 or of heading 5809 consisting of the same textile materials.
(B) For the application of this rule:
Where appropriate, only the part which determines the classification under general interpretive rule 3 shall be taken into account;
In the case of textile products consisting of a ground fabric and a pile or looped surface no account shall be taken of the ground fabric;
In the case of embroidery of heading 5810 and goods thereof, only the ground fabric shall be taken into account. However, embroidery without visible ground, and goods thereof, shall be classified with reference to the embroidering threads alone.
There is no dispute at the heading level that the subject merchandise is described by the terms of heading 6204, HTSUS. Instead, the dispute is solely over whether the subject merchandise is constructed “Of cotton” and is thus classifiable under subheading 6204.62.40, HTSUS, or if it is constructed “Of other textile materials,” and is thus classifiable under subheading 6204.69.90, HTSUS.
Protestant argues that the subject merchandise is constructed of chief weight ramie and is therefore classified in subheading 6204.69.90, HTSUS. Protestant provides its own laboratory testing results in support of this argument and argues that CBP should classify the subject merchandise in accordance with the results of the independent laboratories, whose results indicate that the subject merchandise is chief weight ramie. Protestant further argues that the testing methods used by CTL to determine the fiber content of the jeans was AATCC 20 and AATCC 20A, which it asserts are the same test methods that are recommended by CBP. We note that with regard to this assertion, Protestant cites to a CBP website that is no longer accessible.
In order to resolve the conflicting findings between the CBP laboratory reports and the independent laboratory reports that Protestant submitted, we find that HQ 955711, dated July 21, 1994, is instructive. In HQ 955711, CBP stated the following:
Where there is a conflict between the results obtained by a Customs laboratory and those obtained by private or independent laboratories, Customs will, in the absence of evidence that the testing procedure or methodology utilized by the Customs laboratory was flawed, accept the Customs laboratory report. Obviously, Customs has no assurance that the samples tested by
the outside laboratories are the same samples tested by the Customs laboratory, or that the methodology and techniques utilized by the outside laboratories are in compliance with the required methodology and techniques.
The burden of proof is on the importer that the Customs laboratory report is invalid (HQ 950794, dated March 25, 1992).
This presumption of correctness for CBP laboratory results is also reflected in Exxon Corp v. U.S., 462 F.Supp. 381, 81 Cust. Ct. 87, C.D. 4772 (1978) (quoting Consolidated Cork Corp. v. United States, 54 Cust. Ct. 83, C.D. 2512 (1965)) (citations omitted), which stated the following:
It is well settled that the methods of weighing, measuring, and testing merchandise used by customs officers and the results obtained are presumed to be correct. However, this presumption may be rebutted by showing that such methods or results are erroneous. Furthermore, the presumption does not have evidentiary value and may not be weighed against relevant and material proof offered by the plaintiffs. If a prima facie case is made out, the presumption is destroyed and the Government has the burden of going forward with the evidence.
We note that the Protestant in this case has not met its burden of rebutting the CBP laboratory’s presumption of correctness. While the Protestant’s private lab reports claim to have used test methods AATCC 20 and AATCC 20A, there is no indication that Petitioner’s private laboratory reports were conducted in accordance with the same quality controls, methods and safeguards as employed by the CBP laboratory. Moreover, the private laboratory reports provided by the Protestant do not indicate how, if at all, the fibers were measured. Also, the CBP laboratory found that the diameter range for the ramie fibers was outside the published values in AATCC 20a, whereas the private laboratory did not address this issue in their report. Given these deficiencies in their laboratory reports, Protestant cannot actually rebut the CBP laboratory’s analysis involving the counting of the fibers.
Therefore, we conclude, consistent with the findings of the CBP laboratory, that the subject merchandise is constructed of chief weight cotton, and that the subject merchandise was correctly liquidated under subheading 6204.62.40, HTSUS, which provides for “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 cotton: Other: Other: Other.” Moreover, we note that the subject merchandise is distinguishable from the merchandise classified in NY N041401, because the merchandise that was the subject of that ruling was constructed of cotton.
HOLDING:
Under the authority of GRIs 1 and 6, women’s trousers are classified in heading 6204, HTSUS, specifically, under subheading 6204.62.40, HTSUSA, which provides for “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 cotton: Other: Other: Other.” The 2011 column one, general rate of duty for subheading 6204.62.40, HTSUS, is 16.6% ad valorem. Duty rates are provided for convenience and are subject to change.
You are instructed to DENY the protest.
In accordance with sections IV and VI of the CBP Protest/Petition Processing Handbook, 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 re-liquidation 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 of 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 http://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