CLA-2 OT:RR:CTF:TCM H025872 GC
U.S. Customs and Border Protection
Cleveland Service Port
6747 Engle Road
Middleburg Heights, Ohio 44130
Attn: Area Port Director
RE: Tariff classification of jackets; Protest No. 4110-07-100061
Dear Port Director:
This letter is in response to your memorandum forwarding protest and application for further review (AFR), number 4110-07-100061, filed by FedEx Trade Networks, on behalf of importer Redcats USA, LP (Redcats) on July 2, 2007, against Customs and Border Protection’s (CBP) liquidation of an entry of ladies’ jackets imported by Redcats.
FACTS:
The instant protest covers style 29-1370-5, which is a ladies’ jacket composed of 53 percent nylon and 47 percent polyester. The subject jacket was entered on August 14, 2006 under subheading 6202.13.40, Harmonized Tariff Schedule of the United States (HTSUS) (2006), which provides for, in pertinent part, “[w]omen's or girls' overcoats… and similar articles…: Overcoats… and similar coats: Of man-made fibers:
Other: Other…” CBP liquidated the subject merchandise, as entered, on June 29, 2007. Redcats subsequently protested the liquidation, claiming that the merchandise was erroneously entered, and should be classified as water resistant jackets. With the protest, Redcats submitted a sample, stated to be representative of the subject merchandise.
Redcats’ application for further review (AFR) of Protest 4110-07-100061 was denied on November 27, 2007. Pursuant to a request by Redcats under
19 U.S.C. 1515(c), Headquarters set aside the denial of AFR and voided the denial of the protest on February 8, 2008.
ISSUE:
Whether the protestant has provided sufficient evidence to establish that the submitted sample is representative of the merchandise in its condition as imported?
LAW AND ANALYSIS:
Initially we note that the matter is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification and the rate and amount of duties chargeable. The protest was timely filed on July 7, 2007, within 180 days of liquidation, pursuant to 19 U.S.C. §1514(c)(3).
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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.
Because the instant classification dispute occurs beyond the four-digit heading level, GRI 6 is implicated. GRI 6 states:
For legal purposes, the classification of goods in the subheading of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires.
The 2006 HTSUS provisions under consideration are as follows:
6202 Women's or girls' overcoats, carcoats, capes, cloaks, anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets), other than those of heading 6204:
* * *
Overcoats, carcoats, capes, cloaks and similar coats:
6202.13 Of man-made fibers:
Other:
6202.13.40 Other…
* * *
Anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets):
6202.93 Of man-made fibers:
Other:
6202.93.40 Other…
Additional U.S. Note 2 to Chapter 62, HTSUS, states the following:
For the purposes of subheadings 6201.92.15, 6201.93.30, 6202.92.15, 6202.93.45, 6203.41.05, 6203.43.15, 6203.43.35, 6204.61.10, 6204.63.12, 6204.63.30 and 6211.20.15, the 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.
Redcats argues that that the merchandise is “water resistant” within the meaning of Additional U.S. Note 2 to Chapter 62, HTSUS, and is thus classifiable under subheading, 6201.93.30, HTSUS (2006), or subheading 6202.93.45, HTSUS (2006).
In the disposition of the instant protest, Redcats notes that there is no requirement in the CBP regulations that samples for a protest be from the contested shipment. In this regard, Redcats points to the fact that the item number on the provided sample matches that of most of the entry subject to the instant protest, and asserts that the sample jacket is representative of those from the protested entry.
While it is true that there is no requirement for representative samples to be from the shipments subject to a particular protest, we note that there is also no requirement that CBP accept all samples as representative of the contested shipments. See Headquarters Ruling Letter (HQ) 957062, dated April 5, 1995 (noting that “there is no requirement for [CBP] to accept a sample from protestant months after reliquidation as a representative sample of the entire entry and test it for water resistancy”).
In administering the HTSUS, CBP has consistently followed the long-standing classification principle articulated by the Supreme Court in United States v. Citroen, 223 U.S. 407, 414-415, 32 S.Ct. 259, 56 L.Ed. 486 (1911), where the Court noted that:
[t]he rule is well established that "in order to produce uniformity in the imposition of duties, the dutiable classification of articles must be ascertained by an examination of the imported article itself, in the condition in which it is imported." (cites omitted).
This is particularly necessary with merchandise subject to the water resistance test of Additional U.S. Note 2 to Chapter 62, HTSUS, which is applied on a case-by-case basis because it is entirely possible for one article to pass the test while one article of the same product line fails it. See United States v. Citroen, supra. Allowing importers to provide samples of merchandise that are not from the instant shipment would create the opportunity for importers to submit samples specially constructed to pass the water resistance test specified by Additional U.S. Note 2 to Chapter, HTSUS.
In the instant matter, you state that the sample provided by Redcats for the instant protest was not from the contested entry. Indeed, the sample was not presented with purchasing order numbers that correspond with the invoices from the subject entry, and the date located on the packaging of the provided sample is subsequent to the date of entry. These facts are further indication that sample is not from the contested shipment. It is also noteworthy that the wearing apparel detail sheet contained in the original entry documentation, as well as the corrected entry, states that the subject merchandise is not water resistant. Furthermore, the laboratory report that Redcats submitted with the protest pertained to style numbers and purchase order numbers that were not identified on the commercial invoice. All of these facts call into question whether the provided sample is representative of the merchandise subject to the instant AFR.
Based on the foregoing information, we find that Redcats has not provided substantive proof that the samples are representative of the instant shipment.
See HQ 957062 (“…even if a sample were available at this time, [CBP] would not support the testing of the protestant's later sample as [CBP] has no substantive proof that the sample is representative of the initial shipment.”); see also HQ 229096, dated August 22, 2002 (where CBP held that purported misclassification of four versions of a “man’s track suit” was not a mistake of fact correctable under 19 U.S.C. §1520(c) because the sample provided was not sufficiently connected to the merchandise subject to the protest).
Inasmuch as Redcats has been unable to link the subject merchandise to the representative samples through purchasing order numbers or some other inventory method, etc., there is no need to test the samples provided with the instant protest for water resistance.
HOLDING:
By application of GRI 1, Style 29-1370-5, a polyester ladies jacket, is classified in heading 6202, HTSUS, and specifically in subheading 6202.13.40, HTSUS (2006), which provides for, in pertinent part, “[w]omen's or girls' overcoats, carcoats, capes, cloaks, anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets), other than those of heading 6204: Women's or girls' overcoats… and similar articles…: Overcoats… and similar coats: Of man-made fibers: Other: Other…” The column one, general rate of duty at the time of entry was 27.7 percent ad valorem.
The protest should be DENIED. 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 in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision Regulations and Rulings of the Office of International Trade 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