CBP Ruling H092449

HQ H092449 November 30, 2010 CLA-2 OT:RR:CTF:TCM H092449 ASM CATEGORY: Classification TARIFF NO.: 6201.93.3521 Port Director U.S. Customs and Border Protection 200 East Bay Street Charleston, SC 29401 RE: Application for Further Review of Protest No. 1601-09-100451; Tariff Classification of Boys' Outerwear Jackets Dear Port Director: This is in reference to a Protest and Application for Further Review (AFR), filed on behalf of Adidas America, Inc., regarding the classification of certain boys' outerwear jackets under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Samples were received and tested by Customs and Border Protection's (CBP) Office of Laboratory Services. FACTS: The subject article is a boy's long sleeve woven jacket, which is identified by Protestant as Article No. 200296. The jacket has a full-front zipper closure and knit lining. It features front slash pockets, three white stripes that run from the neckline to half-way down the arm, a high stand-up collar, and the Adidas(tm) logo on the upper front left side. It is the Protestant's assertion that the garment is "water resistant". The subject merchandise was entered on February 2, 2009. Upon entry, the Importer of Record, Adidas America, Inc., described the boys' garments as "water resistant" "anoracks" (sic) and classified them in subheading 6201.93.3000, HTSUSA, which provides for "Men's or boys' overcoats, carcoats, capes, cloaks, anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets), other than those of heading 6203: Anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets): Of man-made fibers: Other: Other: Other: Water resistant". This provision is dutiable under the general column one rate at 7.1 percent ad valorem. On February 20, 2009, CBP issued a Request for Information asking the Importer of Record to furnish samples of the article in question. CBP subsequently sent the samples to a CBP Laboratory for testing to determine whether or not the articles were "water resistant" within the meaning of the tariff. The CBP Laboratory issued Report No. SV20090460, dated May 8, 2009, which determined that the merchandise did not qualify as "water resistant" pursuant to Chapter 62, Additional U.S. Note 2, Harmonized Tariff Schedule of the United States (HTSUS). Based on findings set forth in Report No. SV20090460, CBP liquidated the merchandise on June 26, 2009, under subheading 6201.93.3521, HTSUSA, which provides for "Men's or boys' overcoats, carcoats, capes, cloaks, anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets), other than those of heading 6203: Anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets): Of man-made fibers: Other: Other: Other: Other, Boys'." Duty was assessed under the general column one rate at 27.7 percent ad valorem. On December 18, 2009, the importer filed a Protest and Application for Further Review (AFR) on a single entry asserting that the subject merchandise is properly classified as "water resistant" under subheading 6201.93.3000, HTSUSA. ISSUE: Whether the boys' outerwear jackets qualify as "water resistant" within the meaning of Chapter 62, HTSUSA, Additional U.S. Note 2. LAW AND ANALYSIS: Initially, we note that the matter protested 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) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)). Further review of the protest is warranted pursuant to 19 CFR §§174.24(b) and 174.25 as the decision protested is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise. Specifically, protestant alleges that the port's decision in inconsistent with CBP rulings cited by the protestant in arguing that CBP's laboratory report is incorrect and that the subject merchandise is "water resistant" within the meaning of Chapter 62, Additional U.S. Note 2, and classifiable in subheading 6201.93.3000, HTSUSA. 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 GRI may then be applied. Under the 2009 HTSUSA, Chapter 62, Additional U.S. Note 2, provides in relevant part, as follows: 2. For the purposes of subheadings . . . 6201.93.30 . . . , 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. The CBP Laboratory Report, No. SV20090460, dated May 8, 2009, found that the tested sample had no application of rubber or plastic. Furthermore, when the sample was subjected to the AATC Test Method 35-1985 spray test, it allowed an average of more than one gram of penetration. Protestant arranged for an independent laboratory test of the sample, subsequent to entry, wherein it was asserted that AATCC Test Method 35-1985 was applied and it was found that the garment satisfied the water resistant test. It was further noted that the amount of water gain was 0.6 gram. Protestant claims a pre-entry test using the same AATCC Test Method 35-1985 showed a water penetration of 0.44 gram. In order to resolve the contradictory findings between the CBP and Independent Laboratory Reports, we note that Headquarters Ruling Letter (HQ) 951756, dated June 15, 1993, is relevant in that it stated, "Absent a conclusive showing that the method for determining water resistance used by Customs is in error, or that our results are erroneous, there is a presumption that the results obtained by Customs are correct" citing Exxon Corp. V. U.S., 462 F. Supp. 378, 81 Cust. Ct. 87, C.D. 4772 (1978). Furthermore, in HQ 955711, dated July 21, 1994, it was 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 utilized by the Customs laboratory was flawed, accept the Customs laboratory report." In addition, Protestant argues that the Customs Laboratory actually did find that the test samples had an application of rubber or plastics due to certain notations made on an accompanying worksheet. To resolve any questions as to the accuracy of the Report, we contacted the CBP Laboratory and were advised that the sheet labeled "p.1 of 3" or "10" is merely a worksheet containing boilerplate language typed on it, with the analyst's findings hand-written. In this case the portion indicating a presence of rubber or plastic is found under the pre-printed heading "Stereoscopic Exam", and does not represent the analyst's findings, which are contained in the final report indicating that no rubber or plastic was detected on either the shell or the lining. Protestant further claims that the tested fabric contained "small size stitches" based on hand-written notations on page "10". These notations state in their entirety, "only 2 pieces of sample taken from jacket small size - stitches." In the final CBP report, those notations are put into a narrative statement that clarifies their meaning: "Due to the small size and style of the jacket, the 'water resistance' test was performed on two swatches of fabric from the back of the jacket." Typically, three swatches are tested by the lab. Thus, rather than having tested fabric with stitches, as would have occurred if they had taken three swatches, the lab followed appropriate testing procedures to avoid stitching. In fact, the notation referring to the "small size - stitches" is presented to support testing two, rather than three pieces of fabric. Finally, we note that the Protestant's independent Laboratory test failed to test for an application of rubber or plastic. Thus, contrary to the claim that CBP's test was flawed, it is the Protestant's tests that are deficient. In view of the foregoing, we conclude that the CBP Laboratory Report correctly determined that the merchandise was not "water resistant within the meaning of the definition presented in Chapter 62, Additional U.S. Note 2. Accordingly, we find that the merchandise was properly classified as boys' outerwear jackets in subheading 6201.93.3521, HTSUSA, because this merchandise does not qualify as water resistant within the meaning of the tariff. HOLDING: At the time of liquidation, the subject article was properly classified in subheading 6201.93.3521, HTSUSA, which provides for "Men's or boys' overcoats, carcoats, capes, cloaks, anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets), other than those of heading 6203: Anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets): Of man-made fibers: Other: Other: Other: Other, Boys'." Duty was assessed under the general column one rate at 27.7 percent 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 of 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 5