CLA-2 OT:RR:CTF:TCM H233587 TNA
Port Director, Service Port-New York/Newark
U.S. Customs and Border Protection
Protest and Control
1100 Raymond Boulevard, Suite 402
Newark, NJ 07102
Attn: Suzana Milkulka, Supervisory Import Specialist
Re: Application for Further Review of Protest No. 4601-11-101881; women’s capri pants
Dear Port Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 4601-11-101881, timely filed on November 9, 2011. The AFR concerns the classification of women’s capri pants under the Harmonized Tariff Schedule of the United States (HTSUS). In coming to our decision, we have taken into account arguments presented to members of my staff at a meeting at our offices on June 20, 2013, as well as in a supplemental submission dated July 8, 2013.
FACTS:
The subject merchandise consists of one style of women’s capri pants, Style #FL11400B. Style #FL11400B is a woven, unlined pair of pants. It measures approximately 27.5 inches in length and is designed to fall to the middle of a user’s calf. Furthermore, these pants are pull-on and contain a drawstring around the elastic waistband. The waistband itself measures approximately 1.8 inches in length and is covered by ribbed cotton fabric. These pants also contain two slash pockets in the front, two rear patch pockets, and hemmed leg openings. Style #FL11400B is imported in a range of colors, including black, deep lichen green, starlight blue, brown and sidewalk gray. It is also imported in women’s sizes that range from Size 4 to Size 18. A sample of the subject merchandise in the sidewalk gray color was received and examined by this office.
The subject merchandise was entered on December 21, 2010, under subheading 6204.69.90, 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 other textile materials: Other.” Protestant also submitted a post-entry adjustment (“PEA”) on January 18, 2011, with a sample of the subject merchandise.
This sample was sent to the Newark/New York laboratory of U.S. Customs and Border Protection (“CBP”) for analysis regarding the material composition of the garment. After testing the subject merchandise in accordance with CBPL 35-07, CBPL 50-01, and CBPL 50-03, CBP’s laboratory issued Report No. NY 201100329 on March 24, 2011. There, the laboratory concluded that the subject merchandise consisted of 60.1% cotton and 39.9% linen. In a letter dated October 17, 2011, counsel requested the port retest the sample “pursuant to test methods AATCC20 and AATCC20A” for qualitative and quantitative fiber analysis. At the request of the import specialist, the laboratory subsequently retested the subject merchandise using Fiber Cross-Section Area Measurements. An updated report, Report No. NY 201100329S, was issued on May 1, 2012. There, the laboratory concluded that the subject merchandise consisted of 62.2 percent cotton and 37.8 percent linen.
Based on the findings of these reports, CBP liquidated the merchandise on May 13, 2011, in subheading 6204.62.40, HTSUS, as “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.” Protestant filed this Protest and AFR on November 9, 2011, claiming that the subject merchandise is properly classified as entered.
In addition, CBP sent the sample of Style #FL11400B to the laboratory for testing. This sample was a post-production sample. Once again, the laboratory performed two different tests, ascertaining not only the composition of the sample by weight, but also the ratio of fibers within the sample. The resulting laboratory report, NY20131306, dated September 11, 2013, concluded that the sample consisted of 68.9 percent cotton and 31.1 percent linen by weight. The laboratory also concluded that the ratio of the fibers within the sample was 61.6 percent cotton and 38.4 percent linen. Laboratory methods CBPL 50-01, 35-07, 50-03, and ASTM D 629-08 were noted on the laboratory report.
Following the June 20 meeting, counsel submitted additional samples that had been purchased from Walmart, the importer’s sole customer for the subject merchandise. CBP also sent two of these samples to the CBP laboratory for testing. Laboratory report NY20131416, dated September 11, 2013, concluded that the sample contained 63.3 percent cotton and 36.7 percent linen by weight. The laboratory also concluded that the ratio of fibers within the sample was 55.5 percent cotton and 44.5 percent linen. Laboratory methods CBPL 50-01, 35-07, 50-03, and ASTM D 629-08 were noted on the laboratory report. Laboratory report NY20131598, dated September 11, 2013, concluded that the sample contained 60.9 percent cotton and 39.1 percent linen by weight. The laboratory also concluded that the ratio of fibers within the sample was 53 percent cotton and 47 percent linen. Laboratory methods CBPL 50-01, 35-07, 50-03, and ASTM D 629-08 were noted on the laboratory report.
ISSUE:
Whether the subject merchandise should be classified as cotton trousers of subheading 6204.62, HTSUS, or as linen trousers of 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. (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. 4601-11-101881 is properly warranted pursuant to 19 C.F.R. § 174.24(b) as the decision protested is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee, or by the Customs courts. Specifically, the Protestant notes that independent laboratory results conflict with those of CBP’s laboratory, questions the laboratory methodology with respect to the testing of linen and cotton, and contests that the CBP laboratory may have tested the wrong sample.
Merchandise imported into the United States is classified under the HTSUS. 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 HTSUS and are to be considered statutory provisions of law for all purposes.
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, GRIs 2 through 6 may then be applied in 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 GRIs 1 through 5.
The 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
* * *
6204.69 Of other textile materials:
6204.69.90 Other
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989).
As an initial matter, we note that it is not in dispute that the subject merchandise is described by the terms of heading 6204, HTSUS. Rather, the dispute is at the six digit level of classification, as between the two subheadings that provide for cotton and linen pants.
CBP’s laboratory has tested four different samples of the subject merchandise using two different testing methods each time. With each sample, both testing methods found the subject merchandise to be predominately cotton, as the cotton content varied between 60.1 percent and 68.9 percent. Correspondingly, the linen content was never found to be higher than 39.9 percent in any of the tested samples. As a result, the subject merchandise cannot be described as linen pants. As such, we find that the subject merchandise is classified in 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.”
Pursuant to 28 U.S.C. § 2639(a)(1) (1994), CBP enjoys a statutory presumption of correctness. Thus, an importer has the burden to prove by a preponderance of the evidence that a Customs decision was incorrect. Ford Motor Company v. United States, 157 F.3d 849, 855 (Fed. Cir. 1998); American Sporting Goods v. United States, 27 C.I.T. 450; 259 F. Supp. 2d 1302; 25 Int’l Trade Rep. (BNA) 1345; 2003 Ct. Intl. Trade LEXIS 45. Furthermore, 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.” Aluminum Company of America v. United States, 60 C.C.P.A. 148, 151, 477 F.2d 1396, 1398 (1973) (“Alcoa”). Absent a conclusive showing that the testing method used by the CBP laboratory is in error, or that the Customs’ 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). “If a prima facie case is made out, the presumption is destroyed, and the Government has the burden of going forward with the evidence.” Alcoa, 477 F.2d at 1399; American Sporting Goods, 27 C.I.T. 450. Furthermore, in HQ 955711, dated July 21, 1994, CBP held that “where there is a conflict between 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 used by the Customs laboratory was flawed, accept the Customs laboratory report.” See HQ 955711. See also HQ 953769, dated July 22, 1993.
In the present case, Protestant challenges the results of CBP’s laboratory. In particular, Protestant cites the results of two independent laboratories, Consumer Testing Laboratories and Bureau Veritas. Consumer Testing Laboratories issued two reports, one dated August 2, 2010, and the other dated August 5, 2010, indicating that the fiber content of the subject pants was 55% linen and 45% cotton. Bureau Veritas’ report, which was issued on October 14, 2011, also indicated that the subject merchandise consisted of 55% linen and 45% cotton. Protestant argues that the sample submitted with its PEA, and tested by CBP Laboratory Reports NY 201100329 and NY 201100329S, was a pre-production sample not taken from the shipment at issue whose composition varied from the merchandise that was ultimately imported. Citing HQ 089428, dated May 19 1993, HQ 957282, dated March 28, 1995, and NY N083557, dated December 4, 2009, Protestant argues that the composition of imported merchandise cannot be extrapolated from testing done on pre-production samples. Protestant also submitted invoices and other documentation to show that the samples it submitted after the meeting were from the shipment in question.
We accept Protestant’s documentation as evidence that the samples it submitted after the June 20 meeting were in fact from the shipment at issue. However, we note that CBP’s laboratory results on these samples were similar to that of the sample submitted with the PEA. In fact, the tests done on the samples from the shipment at issue showed a higher cotton composition than the sample submitted with the PEA. As a result, even if we were to assume that the PEA sample was a preproduction sample and disregard its testing results, doing so would not affect our conclusion that the subject merchandise is predominantly cotton.
Protestant also questions the testing methodology followed by CBP’s laboratory. Both independent laboratories used test methods AATCC 20 and AATCC20A, which Protestant contends are CBP-approved methods. Protestant argues that the testing methodology used by the CBP laboratory was flawed because it relied on cotton and linen factors alone, and failed to consider the diameter of the cotton and linen fibers at issue. Protestant argues that the CBP laboratory could have accounted for diameter by implementing a certain mathematical formula into its analysis.
Following a discussion with the CBP laboratory, we note that test methods AATCC 20 and AATCC20A are the same methods as CBPL method 50-01 and 50-03, respectively, the methods used by the CBP laboratory in this case. Furthermore, the CBP laboratory’s analysis of the sample was originally accomplished using the factors that Protestant mentions. This involves counting a minimum of 1000 fibers for total cotton and linen fibers and then using a factor for each fiber type. This factor is based on the density of the fiber or average diameter or average circumference of the natural fiber. In the present case, after the CBP laboratory tested the sample submitted with the PEA, the port requested that the laboratory reanalyze the sample using the fibers’ diameter or cross section area. This retesting was completed, and then repeated by a second analyst. Both tests yielded substantially similar results. Under the factor test, the subject merchandise was found to be 60% cotton and 40% linen. Both analysts who ran the diameter test found that the subject merchandise consisted of 62% cotton and 38% linen. These results were also confirmed by the tests the CBP laboratory performed on the three samples that were submitted after the June 20 meeting.
In addition, the diameter analysis for which Protestant has expressed a preference is accomplished by either a physical separation of the different yarns or by using solvents to dissolve one type of fiber. With a cotton/linen yarn such as the subject merchandise, however, neither method yields results. Any solvent will dissolve both yarns, and a physical separation of the fibers of the yarn is physically impossible. As a result, factors were developed to compensate for these realities when the yarn at issue is a cotton/linen blend. Cotton and linen are both natural plant materials. Their diameter, circumference, and density can vary depending on where the plants grow. The factors are based on an average of these characteristics. We note that if the linen or cotton were unique and differed greatly from the average, then relying on the factors could give aberrant results. However, we may rule out this possibility in the present case because CBP’s laboratory analyzed the sample of the subject merchandise submitted with the PEA using two different tests and the results were similar for both analyses. The same is true of the testing performed on the three samples submitted for testing after the June 20 meeting.
In addition, whereas Protestant received its laboratory results from two independent laboratories, we note that a significant amount of time passed in between the two tests. Consumer Testing Laboratories issued its reports on August 2, 2010 and August 5, 2010. Bureau Veritas’ issued its laboratory report more than a year later on October 14, 2011. This time difference raises questions as to whether samples from the same shipment were tested, and whether the samples tested were from the entries at issue in this protest. Furthermore, the subject merchandise was entered on December 21, 2010, meaning that testing by Consumer Testing Laboratories was performed prior to the subject merchandise’s importation, and Bureau Veritas’ testing was performed well after it was imported. Hence, these outside laboratory reports do not rebut CBP’s presumption of correctness.
For all of these reasons, we find that Protestant has not overcome the presumption that the results of the CBP laboratory are correct. Thus, we adhere to the results of the CBP laboratory in this case. As a result, the instant capri pants are classified in 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.”
HOLDING:
By application of GRI 1, the subject women’s capri pants are classified under heading 6204, HTSUS. By application of GRI 6, they are specifically provided for 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.” The general, column one, 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 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