CLA-2 R:C:T 957062 CAB
Regional Commissioner of Customs
c/o Protest and Control Section
6 World Trade Center, Rm. 761
New York, NY 10048-0945
RE: Request for Further Review of Protest No. 1001-3-108990,
timely filed December 22, 1993; Additional U.S. Note 2, Chapter
62, HTSUSA
Dear Sir:
This is a decision on application for further review of a
protest timely filed by Charming Shoppes on December 22, 1993.
FACTS:
The merchandise at issue are women's anorak style jackets
which are referred to as Style 23100. The garments are comprised
of a shell that is 30 percent wool, 30 percent polyester, 30
percent acrylic, 5 percent nylon and 5 percent other materials.
The lining of the garment is made of 100 percent nylon woven
fabric. The protestant states that the lining of the garments
are coated with a plastic material that renders them water
resistant for tariff classification purposes.
The protest addresses several issues dealing with the entry
in question. A review of the file discloses that the subject
merchandise was entered on June 25, 1992, and automatically
liquidated on June 18, 1993. The entry was reliquidated offline
on September 7, 1993, and a bill was issued to protestant on
September 24, 1993.
Protestant contends that the assessment of increased duties
was untimely because the entry was reliquidated 98 days (i.e., on
September 24, 1993) after the date of the original liquidation.
Hence, it was untimely and contrary to the requirements of 19 CFR
Sect. 173.3 which provides that the district director may
voluntarily reliquidate an entry within 90 days of the date of
the original liquidation.
Alternatively, the protestant asserts that should Customs
determine the reliquidation was timely, the rate advance on
reliquidation of the entry was incorrect. The protestant further
asserts that the merchandise at issue are classifiable as water
resistant jackets in subheading 6202.93.4500 of the Harmonized
Tariff Schedule of the United States Annotated (HTSUSA).
At time of entry, the protestant provided Customs with a lab
report from an independent laboratory that stated that the
subject merchandise was water resistant for tariff classification
purposes. The protestant requests that we accept the results of
the private lab as indicative of the entire shipment of goods or
have the same sample tested a second time by Customs. Prior to
the protestant having the sample tested at an independent lab,
Customs conducted a water resistant test on a random sample from
the subject shipment of goods and the garment did not pass the
test for water resistancy. The protestant disputes the results
of Customs lab analysis.
ISSUES:
I. Was the subject reliquidation untimely?
II. Whether the subject merchandise is water resistant for tariff
classification purposes?
LAW AND ANALYSIS:
ENTRY
Initially, we note that the protest was timely filed under
the statutory and regulatory provisions for protests (19 U.S.C.
Sect. 1514 and 19 CFR Part 174). We also note that liquidation
of an entry is a protestable matter pursuant to 19 U.S.C Sect.
1514(a)(5).
Liquidation of an entry of merchandise constitutes the final
computation by Customs of all duties (including any dumping or
countervailing) accruing on that entry. See generally,
Ambassador Division of Florsheim Shoes v. United States, 748 F.2d
160, 162 (Fed. Cir. 1984). Section 501 of the Tariff Act of
1930, as amended (19 U.S.C. Sect. 1501), provides:
A liquidation made in accordance with section 1500 of this
title or any reliquidation thereof made in accordance with
this section may be reliquidated in any respect by the
appropriate customs officer on his own initiative,
notwithstanding the filing of a protest, within ninety days
from the date on which notice of the original liquidation is
given the importer, his consignee or agent.***
Protestant contends that the subject reliquidation under 19
U.S.C. Sect. 1501 was invalid because it was carried out after
the 90-day limit set forth in the statute.
As stated in the FACTS portion, the subject entry was
reliquidated offline on September 7, 1993. This office has been
informed that an offline reliquidation is posted in the bulletin
of entries liquidated just like any other liquidation or
reliquidation. Customs records indicate that the bulletin notice
was published on September 7, 1993. The Court of International
Trade has stated that "proper notice of liquidation refers to the
bulletin notice of liquidation." See Penrod Drilling Co. v.
United States, 13 CIT 1005, 1009, 727 F. Supp. 1463, 1467 (1989),
aff'd, 925 F.2d 406 (Fed. Cir. 1991); see also, Goldhofer
Fahrzeugwerk GmbH v. United States, 13 CIT 54, 706 F. Supp. 892,
aff'd, 885 F.2d 858 (Fed. Cir. 1989). It is the importer who has
the obligation to check all notices posted to determine whether
its goods have been liquidated. Omni U.S.A., Inc. v. United
States, 11 CIT 480, 483, 663 F. Supp. 1130, 1133 (1987), aff'd
840 F.2d 912 (Fed. Cir. 1988), cert denied, 488 U.S. (1988).
The Customs Service obligation was met once it posted the
required offline liquidation bulletin notice. Pursuant to 19 CFR
173.3(b), "[n]otice of a voluntary reliquidation shall be given
in accordance with the requirements for giving notice of the
original liquidation." The bulletin notice is the only required
notice. See 19 CFR Sect. 159.9(a). Contrary to protestant's
assertion, the entry was not reliquidated on September 24, 1993.
It was the computer generated bill for the additional duties that
was issued on said date. Therefore, there was a timely
reliquidation of the subject entry.
CLASSIFICATION
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRI's). GRI 1 provides that
classification shall be determined according to the terms of the
headings and any relative section or chapter notes. Merchandise
that cannot be classified in accordance with GRI 1 is to be
classified in accordance with subsequent GRI's taken in order.
At issue is whether the subject merchandise is properly
classifiable as water resistant garments under Heading 6202
HTSUSA, which provides for women's or girls' overcoats, capes,
cloaks, anoraks (including ski jackets), windbreakers and similar
articles of man-made fibers.
Additional U.S. Note 2, Chapter 62, HTSUSA, governs the
classification of garments under subheadings in Chapter 62 which
specifically provide for "water resistant" garments. The note is
as follows, in pertinent part:
[T]he term "water resistant" means that garments
classifiable in those subheadings must have a water
resistance (see ASTM designations D 3600-81 and D 3781-79)
such that, under a head pressure of 600 millimeters, not
more than 1.0 gram of water penetrates after two minutes
when tested in accordance with AATCC Test Method 35-1985.
This water resistance must be the result of a rubber or
plastics application to the outer shell, lining or inner
lining.
The protestant contends that due to Customs delay, he was
only able to procure one stock sample of the merchandise at
issue. The protestant sent this stock sample to an independent
laboratory and he states that it passed the test for water
resistance in accordance with Additional U.S. Note 2, Chapter 62,
HTSUSA. A copy of the independent lab report was attached to the
subject protest. The protestant requests that Customs test this
particular stock sample for water resistancy. The protestant
further asks that if the sample passes the water resistant test
that the entry be reliquidated. It is our opinion, however, that
even if a sample were available at this time, Customs would not
support the testing of the protestant's later sample as Customs
has no substantive proof that the sample is representative of the
initial shipment.
In Exxon Corp. v. United States, 462 F. Supp. 378, 81 Cust.
Ct. 87, C.D. 4772 (October 16, 1978), the court stated that
absent a conclusive showing that the method for determining water
resistance used by Customs is in error, or that the results are
erroneous, there is a presumption that the results obtained by
Customs are correct. In this case, Customs has followed the
testing standards set forth in the tariff schedule; there is no
substantive evidence that has been presented to this office which
incontrovertibly establishes that either the methods used by
Customs, or the results obtained, were erroneous. Absent this
evidence, Customs results stand.
The Customs lab report determined that the lining from the
back, right front, and right sleeve of the tested garment failed
the test for water resistancy. Customs has consistently
determined that garments are viewed in their entirety, and if
part of the garment fails the test, then the garments at issue
are not determined to be water resistant for tariff
classification purposes. See Headquaters Ruling Letter 951756,
dated, June 15, 1993.
As the testing procedures performed by the Customs lab
followed those mandated in the tariff test, this office is of the
opinion that the lab findings are conclusive. Moreover, there is
no requirement for Customs to accept a sample from the protestant
months after reliquidation as a representative sample of the
entire entry and test it for water resistancy.
HOLDING:
The subject entry was reliquidated offline on September 7,
1993, the eighty-first day after the original liquidation. Thus
the subject reliquidation was timely under 19 U.S.C. Sect. 1501.
The subject merchandise was properly classified in
subheading 6202.93.5011, HTSUSA, which provides for women's
windbreakers and similar articles of man-made fibers. The
applicable rate of duty is 29.3 percent ad valorem and the
textile restraint category is 635.
The protest should be denied in full and a copy of this
ruling should be attached to the Customs Form 19 and provided to
the protestant as part of the notice of action.
In accordance with Section 3(A)(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed by your office to the
protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with the decision
must be accomplished prior to mailing of the decision. Sixty
days
from the date of the decision the Office of Regulations and
Rulings will take steps to make the decision available to Customs
personnel via the Customs Ruling Module in ACS and the public via
the Diskette Subscription Service, Freedom of Information Act and
other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division