OT:RR:CTF:TCM H311980 MJD
Center Director
Apparel, Footwear and Textiles CEE
U.S. Customs and Border Protection
Port of New York/Newark, New Jersey
1100 Raymond Blvd.
Newark, NJ 07102
Attn: Stephen Bono, Import Specialist
RE: Application for Further Review of Protest No. 4601-18-101217; Classification of Women’s Pants
Dear Center Director:
This is in reference to the Application for Further Review (“AFR”) of Protest No. 4601-18-101217, timely filed on August 14, 2018, by Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt, LLP, on behalf of ICA Denim, Inc. (“Protestant”), contesting U.S. Customs and Border Protection’s (“CBP”) tariff classification of certain women’s pants under the Harmonized Tariff Schedule of the United States (“HTSUS”). Our decision is set forth below.
FACTS:
The merchandise at issue consists of several styles of women’s blue denim pants. The Protestant claims that the pants are “chief weight of ramie blended with lesser amounts of cotton, polyester and spandex.” As a result, Protestant entered the pants under subheading 6204.69.8044, HTSUSA (“Annotated”), which provides for “[w]omen’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: Other: Trousers, breeches and shorts: Other: Trousers and breeches.”
CBP’s New York laboratory tested three styles of the women’s pants at issue from three different entries and found that the garments were made primarily of cotton, and lesser amounts of polyester and spandex. Specifically, CBP’s New York laboratory on January 26, 2018, reported via laboratory report no. NY20180066 that the Tush Push style No. TP651/15 is composed of “77.8 % [c]otton and 22.2 % [p]olyester/[s]pandex yarns by weight.” On February 2, 2018, CBP’s New York laboratory reported via laboratory report no. NY20180065 that the Bamboo style No. TJ 336C is composed of “70.2 % [c]otton, 29.8 % [p]olyester/[s]pandex by weight.” Lastly, on January 12, 2018, CBP’s New York laboratory reported via laboratory report no. NY20171797 that the Bamboo style 27-BY127M is composed of “76.5 % [c]otton, 18.5 % [p]olyester, and 5.0 % [s]pandex.” Subsequently, CBP reclassified the pants under subheading 6204.62.8011, HTSUSA, which provides for “[w]omen’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: Other: Other: Women’s trousers and breeches: Blue denim.” Protestant asserts that the women’s pants should be classified as entered under subheading 6204.69.8044, HTSUSA.
After the importation, Protestant had Vartest laboratories, a third-party laboratory, test two samples of the women’s pants. On March 22, 2018, Vartest laboratories tested women’s jeans, bamboo, style # P3212 and found that the garment is composed of 54.15% ramie, 25.90% cotton, 19.10% polyester, and 0.85% spandex. On March 30, 2018, Vartest laboratories found that women’s jeans, bamboo, style # SS-P3211 is composed of 48.76% ramie, 29.89% cotton, 20.49% polyester, and 0.86% spandex. Both tests state that Vartest laboratories used AATCC 20A test method – with moisture to test the pants. Protestant claims that “[t]he tested samples were taken from subsequent production runs; however, the manufacturers have assured ICA that these samples are representative of the merchandise export[ed] to the United States.”
ISSUE:
Whether the subject women’s pants are constructed “Of cotton” and classified under subheading 6204.62, HTSUS, or whether they are constructed “Of other textile materials” and classified under subheading 6204.69, HTSUS.
LAW AND ANALYSIS:
Initially, we note that the matter 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. See 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. 4601-18-101217 is properly accorded to Protestant pursuant to 19 C.F.R. §174.24(b) because Protestant alleges that the decision against which the protest was filed involves questions of law or fact which have not been ruled upon by the Commissioner of CBP or his designee or by the Customs courts.
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 2 through 6 may then be applied in order.
The 2017 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:
Other:
6204.62.80 Other:
Other:
Women’s trousers and breeches:
6204.62.8011 Blue denim. . .
* * *
6204.69 Of other textile materials:
Other:
6204.69.80 Other. . .
Trousers, breeches and shorts:
Other:
6204.69.8044 Trousers and breeches. . .
* * *
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;
[. . .]
* * *
There is no dispute at the heading level that the women’s pants at issue are described by the terms of heading 6204, HTSUS, which provides for “[w]omen’s or girls’ suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear).” Instead, the dispute is solely over whether the subject merchandise is constructed “Of cotton” and is thus classifiable under subheading 6204.62, HTSUS, or whether the subject merchandise is constructed “Of other textile materials,” and is thus classifiable under subheading 6204.69, HTSUS.
Protestant argues that the women’s pants are constructed mostly of ramie and are therefore classified in subheading 6204.69, HTSUS, as pants constructed “Of other textile materials.” In support of their argument, Protestant provides its own laboratory testing results from third-party laboratory, Vartest laboratories, which found that women’s jeans, bamboo, style # P3212 is composed of 54.15% ramie, 25.90% cotton, 19.10% polyester, and 0.85% spandex; and women’s jeans, bamboo, style # SS-P3211 is composed of 48.76% ramie, 29.89% cotton, 20.49% polyester, and 0.86% spandex. Protestant claims that “[t]he tested samples were taken from subsequent production runs,” and that the “samples are representative of the merchandise export[ed] to the United States.” As such, Protestant argues that CBP should classify the subject merchandise in accordance with the results of Vartest laboratories, whose results indicate that the subject merchandise is of chief weight ramie.
However, CBP specifically tested three garments from entries in this protest and found that the garments were made primarily of cotton blended with lesser amounts of polyester and spandex. Specifically, CBP found that the Tush Push style No. TP651/15 is composed of “77.8 % [c]otton and 22.2 % [p]olyester/[s]pandex yarns by weight,” the Bamboo style No. TJ 336C is composed of “70.2 % [c]otton, 29.8 % [p]olyester/[s]pandex by weight;” and the Bamboo style 27-BY127M was composed of “76.5 % [c]otton, 18.5 % [p]olyester, and 5.0 % [s]pandex.”
To resolve the conflicting findings between the CBP laboratory reports and Vartest laboratories reports that Protestant submitted, Headquarters Ruling Letter (“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.
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.
In the instant case, Protestant has not shown that CBP’s laboratory methods or results were erroneous, and therefore has not rebutted CBP laboratory’s presumption of correctness. While the third-party laboratory reports claim to have used test method AATCC 20A with moisture, we cannot guarantee that the tests were conducted in accordance with the same quality controls, methods and safeguards as employed by the CBP laboratory. Moreover, CBP tested Bamboo style 27-BY127M, Tush Push style No. TP651/15, and Bamboo style No. TJ 336C, which are the samples of the merchandise from the entries subject to this protest. On the other hand, Vartest laboratories tested Bamboo style # P3212 and Bamboo style # SS-P3211 taken from subsequent production runs. Although, the Protestant states the samples that were tested are representative of the merchandise exported to the United States, we are not persuaded that these samples are the same samples subject to this protest and tested by CBP laboratory because they are different styles numbers from the ones tested by CBP.
Accordingly, absent a conclusive showing that the testing method used by the CBP laboratory is in error, or that CBP’s laboratory results are erroneous, we find that in accordance with CBP’s laboratory results, the women’s pants at issue here are properly classified in subheading 6204.62.8011, HTSUSA, which provides for “[w]omen’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: Other: Other: Women’s trousers and breeches: Blue denim.”
HOLDING:
By application of GRIs 1 and 6, we find that the women’s pants are classified in heading 6204, HTSUS, and specifically under subheading 6204.62.8011, HTSUSA, which provides for “[w]omen’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: Other: Other: Women’s trousers and breeches: Blue denim.” The 2017 column one, general rate of duty is 16.6% ad valorem.
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 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 Trade, Regulations and Rulings will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (“CROSS”) at https://rulings.cbp.gov/ which can be found on the U.S. Customs and Border Protection website at http://www.cbp.gov and other methods of public distribution.
Sincerely,
For Craig. T. Clark, Director
Commercial and Trade Facilitation Division