CLA-2 OT:RR:CTF:TCM H083655 CKG
Category: Classification
Tariff No.: 6204.62.40
Port Director
U.S. Customs and Border Protection
Port of Newark/New York
1100 Raymond Boulevard
Newark, NJ 07102
Re: Application for Further Review of Protest No. 4601-09-101313; Jeans
Dear Port Director:
This is in reference to the Application for Further Review of Protest No. 4601-09-101313, filed on behalf of Liberty Apparel, Inc. (“Protestant”) on July 14, 2009, concerning the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of a single entry of jeans, imported by Liberty Apparel, Inc. on August 12, 2008.
FACTS:
The instant merchandise consists of a single entry (entry # ***-****6685) of several styles of jeans. The style numbers contained in the instant entry are: RB51027J, RB51037J, RB51028X, RB51027X, RB51026X, and RB51037X. The stated fiber content for all styles is 55% ramie, 22% cotton, 23.8% polyester and .8% spandex. The instant merchandise was entered under subheading 6204.69.9044, HTSUS, and the entry was rate-advanced by the Port to subheading 6204.62.4011, HTSUS, at a duty rate of 16.6% ad valorem. The entry was rate-advanced based on the results of a CBP Laboratory and Scientific Services analysis conducted on a sample from a previous entry, (***-****5075), made on August 18, 2008. The sample tested, style RB51038X, also had a stated fiber content of 55% ramie, 22% cotton, 23.8% polyester and .8% spandex. The CBP laboratory test found the actual fiber content to be 75.4% cotton, 23.8% polyester, and .8% spandex.
The instant entry shares the same manufacturer (the MID, or manufacturer identification number, is the same for both entries), purchase order numbers (****39 and ****41), and stated fiber content with entry # ***-****5075. The style numbers and stated cost are also substantially similar, albeit not identical. The style number for the tested sample was RB51038X, priced at $5.35. The style numbers contained in the instant entry are: RB51027J, RB51037J, RB51028X, RB51027X, RB51026X, and RB51037X. Styles RB51027J, RB51037J are priced at $5.50 each, the remaining styles at $6.00 each. No sample was provided from the instant entry.
ISSUE:
Whether the instant merchandise may be classified in subheading 6204.62, HTSUS, as trousers of cotton, based on a laboratory test on a single, discrepant sample belonging to a previous shipment, or whether in the absence of a laboratory test on the instant merchandise, it is classified in subheading 6204.69, HTSUS, as trousers of other textile materials.
LAW AND ANALYSIS:
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 of the first entry 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. 4601-09-101313 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed involves specific factual and legal questions that have not been the subject of a Headquarters ruling or court decision.
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.
The HTSUS provisions under consideration are:
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 . . . . .
* * * * *
Protestant references two federal court cases, United States v. Stone & Downer Co., 274 U.S. 225 (1927), and Schott Optical Glass, Inc. v. United States, 750 F.2d 62 (1984), in support of the instant protest. However, we note that neither case prevents CBP from treating goods from different shipments the same; instead, these cases merely stand for the proposition that an importer should be allowed to introduce evidence to show why later goods should be classified differently than prior goods. The protestant, however, has not introduced any such evidence. Though the Port notified the protestant of its proposal to rate-advance the entry at issue before it issued a notice of action, the protestant did not submit a sample from the disputed entry, a laboratory report, or any such positive evidence of the composition of the garments at issue.
Protestant further claims that CBP has never tested a sample from A&A International Corp., the supplier for the instant entry. However, the commercial invoices for the entry tested and found discrepant (entry ***-****5075) and the instant entry (***-****6685) both list A&A as the foreign supplier. Furthermore, the MID number found on the textile export license and Customs Form 3461 pertaining to the instant entry is the same as that found on Customs Form 3461 pertaining to entry ***-****5075, indicating the same manufacturer produced both shipments of jeans. Thus, the only evidence protestant submits in support of its claim is the entry/shipping documentation, which supports CBP’s position that the two shipments are sufficiently alike to merit the same treatment.
CBP’s position with regard to applying test results of a single sample to other shipments from the same importer was set forth in HQ 083879, dated July 2, 1990, which held that if the shipment from which the sample is obtained is from the same manufacturer, has the same style number, costs the same, and has the same information on the invoice as another shipment, and the second shipment is imported a very short time after the first, it is safe to assume that the merchandise is the same for both shipments. While a single result will never be applied indefinitely, given the likely changes from shipment to shipment, lab results from a single sample have been applied to entries made up to one year after the tested shipment. See HQ W968430, dated July 23, 2008, in which CBP found it was reasonable for the Port to conclude that the tested sample of truffles was representative of the merchandise in all shipments throughout the covered time period. In that case, according to the submitted documents, all the truffles at issue originated in the Umbria area of Italy during the 2004 harvesting season for black summer truffles (June 1 to August 31). Further, all the alleged processing operations were performed at the same facility in Italy and the truffles were allegedly processed in the same manner. Given those factors, it was found that changes in the truffles from shipment to shipment would have been highly unlikely.
In the instant case, the rate-advanced entry shares the same manufacturer, supplier, purchase order number and stated fiber content with the sample tested by the CBP laboratory, and was entered only six days before the tested entry. The style numbers and stated cost are also substantially similar, albeit not identical. Given these facts, the size of the discrepancy found for entry # ***-****5075, and the fact that no sample was provided by the protestant, we find that there is sufficient evidence to conclude that the tested sample was representative of the rate-advanced shipment. We therefore find that the reclassification in subheading 6204.62.40, HTSUS, for cotton trousers, and the rate advance were appropriate.
HOLDING:
The result of a CBP laboratory report on a sample pair of jeans taken from a single entry may be applied to another entry made six days earlier covering similar styles from the same manufacturer, supplier and purchase order and claiming the same fiber content.
The instant 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.” The 2008 column one, general rate of duty is 16.6% ad valorem.
You are instructed to deny the protest in full. 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 Customs 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 the Office of 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