Protest No. 4701-10-100185; Reliquidation; 19 U.S.C. § 1501; Tariff classification of women’s upper body garments

HQ H161615 October 17, 2014 CLA-2:OT:RR:CTF:TCM H161615 HvB CATEGORY: Classification TARIFF NO.: 6206.30.3041Area Port Director U.S. Customs and Border Protection John F. Kennedy International AirportBldg #77Jamaica, NY 11430 Attn: Joseph A. DiSalvo RE: Protest No. 4701-10-100185; Reliquidation; 19 U.S.C. § 1501; Tariff classification of women’s upper body garments Dear Port Director: This letter is in response to your memorandum forwarding Protest 4701-10-100185 and Application for Further Review (“AFR”), filed on behalf of Mona Lisa Fashion, Inc, (“Mona Lisa”) on February 9, 2010, against U.S. Customs and Border Protection’s (CBP) classification and reliquidation of three entries of women’s upper body garments imported by Mona Lisa. A teleconference was held between counsel for the importer and members of my staff on March 22, 2011. This decision also takes into consideration counsel’s additional submission of July 12, 2011. FACTS: The subject merchandise consists of women’s garments, identified as style #s 14074, 14075, and 9801. The merchandise was imported from India under three entries between July 9 and July 11, 2008, under subheading 6211.42.0056, Harmonized Tariff Schedule of the United States (HTSUS), which provides for: “Track suits, ski-suits and swimwear; other garments: [o]f Cotton… [o]ther.” For each entry, on the CF 7501, the merchandise was described as “Other blouses/shirts, women’s/girls co.” We further describe the invoices below for each entry. Style #14074 was entered under Entry # xxx-xxxx4009 and Entry # xxx-xxxx096. The invoices and air waybills describe the articles in question as “100% Cotton Woven Powerloom Ladies Tunic.” Styles #9801 and #14075 were entered under Entry xxx-xxxx4215. The invoices and air waybills describe the merchandise in question as “women cotton tunic top”. On May 22, 2009, all three entries were liquidated as entered. The date of liquidation or notice thereof is not at issue. On June 24, 2009, CBP issued a Request for Information (CBP Form 28) to the importer, requesting samples of Styles #14074 and #9801 from one of the entries at issue. In response, Mona Lisa submitted a sample of Style # 14074, a size petite medium women’s woven cotton blouse, which has an adhesive label attached below the sewn in label. “#14074” is written on the label. The sample submitted to the port is pictured below:
 On August 3, 2009, CBP issued a Notice of Action (CBP Form 29), rate advancing and reclassifying the merchandise in subheading 6206.30.3041, HTSUS, which provides for “…Women's or girls' blouses, shirts and shirt-blouses: [o]f cotton: [o]ther: Women’s.” The entries were manually reliquidated in subheading 6206.30.3041, HTSUSA, and a bulletin notice was posted in the customhouse at the Port, on August 20, 2009. On September 9, 2011, CBP mailed a courtesy notice of reliquidation to Mona Lisa and a copy to its Customs Broker. The notice stated the subject entries were reliquidated on August 20, 2009, and that billing would occur in the September 2, 2009 billing cycle. Protest and Application for Further Review (AFR) 4701-10-100185 were timely filed on February 9, 2010, with the Port of JFK. In its Protest submission of February 9, 2010, counsel states: While the sample of Style 14074 that was originally submitted to Customs may not have had pockets, the actual garment produced and imported, did have pockets below the waist. We note that Customs made the request for samples almost one year after entry, and the garments from the shipment were no longer available. The sample that was submitted to Customs was the sample used by the protestant in its show room, and was not the garment that was actually imported [emphasis added].” The Protest submission includes three photographs that are identified as Exhibits A, B, and C. In each photograph, a woman is wearing an upperbody garment. Exhibit A is marked Style #14074. Exhibit B is marked Style # 9801, and Exhibit C is marked Style #14075. In its Protest submission, the Protestant also contests August 20, 2009, as the date of reliquidation for the subject entries. Instead, the Protestant asserts that the date of reliquidation occurred on September 25, 2009, the date when CBP issued a bill to the importer for duties payable and based upon system, Automated Broker Interface (ABI), which allows qualified Customs Brokers to submit data electronically to CBP.  On July 12, 2011, in a subsequent submission, counsel provided the following: (1) a statement from the protestant dated July 12, 2011, (2) two photocopied and undated affidavits from the protestant regarding entries xxx-xxxx4009 and xxx-xxxx0965, (3) two identical copies of an undated production sketch for Style # 14074, and (4) a sample of a garment identified by the protestant as Style # 14074. The contents of these documents and the sample are described below: (1) The July 12, 2011 statement addresses Style # 14074. Counsel states: “We specifically noted in the protest that the garment that was submitted to Customs several months earlier may not have had pockets.” (2) Two documents identified as affidavits were submitted for each entry under which Style 14074 was imported. Each affidavit consists of a photocopy of a document that was signed by the manufacturer’s General Manager. The name of the signatory is not given on either document. The affidavits are also undated. The first affidavit references the shipment entered under Entry xxx-xxxx4009 and the production sketch described below. As to the shipment, the General Manager states: “We have shipped 100% cotton woven powerloom ladies tunic style no 14074” and that the production sketch and specifications are for the style shipped. With regard to the affidavit itself and the production sketch, the General Manager states: “this certificate is issued to M/S Mona Lisa Fashion Inc, …for their internal purposes.” The second affidavit differs only from the first in that it references Entry xxx-xxxx0965. (3) The production sketch for Style #14074 consists of a drawing of a women’s upper body garment, with “# 14074” written in smudged ink and list of measurements for the garment. The drawing shows a garment with a frontal opening demarcated by six buttons and a self-fabric belt that sits at the waist well below the opening. The garment also has two front pockets, which sit near just below the waist and the self-fabric belt. The relevant specifications are as follows: Arm Hole 19.5” Wast[sic] placement from under arm 10.5” Waist 17.5” Bottom 27” Sleeve Length 6.5 Sleeve Open 7” Length from HPS [high point of shoulder] 34” Center Back 32” Self fabric belt 2” x 52” (4) The sample is a size medium women’s white 100% woven cotton casual “dress” which has short puff sleeves. The sleeves measure 7.1 inches in length. The garment extends to the mid-thigh and is 33 inches long from the high point of the shoulder. The front of the garment also measures 32 ½ inches from the center back. The front of the garment has a frilled bodice that extends to just below the waist and has a row of six buttons. On either side of the garment, there are two short horizontal rows of stiches that provide a darting effect. The waist measures 32 inches in total width while the bottom hem measures approximately 27 inches in width in the front for the dress, and 54 inches in width measured front and back. Two pockets sit approximately 2 inches above the bottom hem of the garment. There are loops at the hips and a self-fabric belt was included with the sample. We note that the self-fabric belt has diagonal ends and measures 1.8 inches by 58 inches. When the belt is tied, it sits below the frontal opening, and below the waist. The sample for Style #14074 that was submitted to CBP Headquarters and described herein is pictured below:
Protestant argues that all three styles are classified as women’s dresses of subheading 6204.42, HTSUS, as other cotton dresses or in heading 6211, HTSUS, which provides for “other garments.” ISSUES Was the reliquidation of the subject entries proper? Has the Protestant established that the imported merchandise was incorrectly classified? LAW AND ANALYSIS Initially, we note that the matter is protestable under 19 U.S.C. § 1514(a). The protest was timely filed, within 180 days of liquidation for all involved entries (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 Protest No. 4701-10-100185 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) because the decision which the Protest was filed is alleged to be inconsistent with matters ruled upon by the Commissioner of Customs or his designee with respect to the same or substantially similar merchandise. Specifically, Protestant cites to several rulings, including NY N005809, dated January 31, 2007, wherein CBP classified certain women’s garments as “casual wear dresses” in subheading 6204.42, HTSUS. (I) RELIQUIDATION Counsel for Mona Lisa asserts that the reliquidation of the subject entries is invalid on the basis that (1) the date of reliquidation exceeded the 90-day time limit set forth in 19 U.S.C. 1501, and that (2) CBP failed to meet its obligations to properly notify the protestant of the reliquidation. The statute on voluntary reliquidation, 19 U.S.C. §1501, provides CBP with the authority to reliquidate the entry. It states: A liquidation made in accordance with section 1500 or 1504 of this title or any reliquidation thereof made in accordance with this section may be reliquidated in any respect by the Customs Service, notwithstanding the filing of a protest, within ninety days from the date on which notice of the original liquidation is given or transmitted to the protestant, his consignee or agent. 19 C.F.R. §159.9 sets forth the rules concerning CBP’s obligations for providing notice to importer on the liquidation of entries. (a) Notice of liquidation of formal entries will be made on a bulletin notice of liquidation, CBP Form 4333. 19 C.F.R. §159.9(b) further provides: The bulletin notice of liquidation will be posted for the information of protestants in a conspicuous place in the customhouse at the port of entry (or customs station, when the entries listed were filed at a customs station outside the limits of a port of entry), or will be lodged at some other suitable place in the customhouse in such a manner that it can readily be located and consulted by all interested persons, who will be directed to that place by a notice maintained in a conspicuous place in the customhouse stating where notices of liquidation of entries are to be found. 19 C.F.R. §159.9(c) provides: The bulletin notice of liquidation will be dated with the date it is posted or lodged in the customhouse for the information of protestants. This posting or lodging will be deemed the legal evidence of liquidation. For electronic entry summaries, the date of liquidation will be the date of posting of the bulletin notice of liquidation. CBP will endeavor to provide the filer with electronic notification of this date as an informal, courtesy notice of liquidation. CBP had ninety (90) days from the date on which notice of the original liquidation was provided to the protestant to voluntarily reliquidate under 19 U.S.C. § 1501. In the instant case, the subject entries were originally liquidated in heading 6204, HTSUS, on May 22, 2009. Counsel asserts that reliquidation occurred on September 25, 2009, on the basis of ABI printouts for the entries in question and CBP bills for computed duties, which are both dated September 25, 2009. The only notice of liquidation or reliquidation that is statutorily mandated is bulletin notice. See Goldhofer Fahrzeugwerk GmbH & Co. v. United States, 706 F.Supp. 892, 895 (1989), aff'd, 885 F.2d 858 (Fed.Cir. 1989); Tropicana Products, Inc. v. United States, 713 F.Supp. 415, 419 (1989). Both ACS and the bulletin notice reflect a date of reliquidation of August 20, 2009. The August 20, 2009 reliquidation is within ninety days of May 22, 2009, and is therefore timely. As noted above, CBP records show that a Bulletin of Entries Liquidated (CBP Form 4333) was posted in the customhouse at the port of entry on August 20, 2009, and that a courtesy notice was mailed to the Protestant’s counsel. Pursuant to 19 C.F.R. §159.9(b), this bulletin notice is legal evidence of liquidation. See Headquarters Ruling Letter (HQ) 228645, dated February 1, 2002. We therefore find that the Protestant was properly notified of the reliquidation of the subject entries. (II) CLASSIFICATION By statute, CBP decisions regarding the classification of imported merchandise are presumed correct and the burden is on the protestant to prove otherwise. See 28 U.S.C. § 2639(a)(1). See also Rollerblade, Inc. v. United States, 282 F.3d 1349, 1352 (Fed. Cir. 2002) (“a classification of merchandise by Customs is presumed to be correct . . . [so] the burden of proof is upon the party challenging the classification.”). The presumption of correctness, however, “does not add evidentiary weight; it simply places the burden of proof on the challenger.” Anhydrides & Chems., Inc. v. United States, 130 F.3d 1481, 1486 (Fed. Cir. 1997). See H068277, dated December 30, 2010. Style #14074 In both its protest submission and supplemental submission, Protestant has submitted conflicting evidence of style #14074. Initially, Protestant submitted style #14074 (the blouse in the photo below) to the Port, and style #14074 (the “dress” in the second photo) to CBP Headquarters, during our review of the Protest. See photos below. We note that style #14074 (the blouse) submitted to the Port corresponds to the description of style #14074 in the entry documentation in that the invoices describe the merchandise as “100% Cotton Woven Powerloom Ladies Tunic.” The garment is hip length.

 The EN to heading 6206, the provision for “Women’s or girls’ blouses, shirts and shirtblouses” explains that heading 6206, HTSUS, “does not cover garments with pockets below the waist or with a ribbed waistband or other means of tightening at the bottom of the garment.” We observe that in its July 12, 2011 submission, Protestant stated that it was unsure as to whether the garment that it submitted to the Port during its review of the protest had pockets. As the first picture above demonstrates, the sample submitted by Protestant indeed did not have pockets. Styles #14074, #14075, and #9801 were described as “tunics” or “tunic tops” on the invoices and airway bills. Mary Brooks Picken’s A Dictionary of Costume and Fashion (Dover Publications, Inc., 1985) defines “tunic” as “[o]verblouse or coat, usually to the hip line or longer.” Under the HTSUS, a “tunic” can describe different upper body garments that are classifiable in different headings. Depending on the length, features, coverage, and styling of the garment, CBP has classified women’s tunics in heading 6206.30.30, as “blouses and shirt-blouses” and as dresses, in heading 6204, HTSUS. For instance, in NY K84739, dated May 6, 2004, we classified a “tunic-length blouse” that extended to the knee and had side slits in heading 6206, HTSUS. See also HQ 957341, dated May 24, 1995, and N217823, dated June 12, 2012 (classifying “tunic-styled garment that extended below waist in heading 6206). CBP has also classified “tunics” in the provision for “other garments” in heading 6211, HTSUS. See NY D89327, dated April 6, 1999 (classifying tunic with side slits that extended to the calf in heading 6211), and NY N078381, dated October 9, 2009. Aside from submitting completely different garments, Style #14074 (the dress) submitted to CBP Headquarters seemed to have been manipulated by the Protestant. For example, the “Mona Lisa” hang tag seemed to have been altered. The spaces on the tag identifying the garment’s “Style”, “Colour” and “Size” are all marked and then covered up with white-out. Hand-written over the white-out is the following: “14074”, for style; “White”, for color; and “M”, for size. The space on the tag for “Content” is marked with “100% Cotton”. In its protest submission, Protestant describes Style #14074 as having a frilled bodice, short puffed sleeves, and a row of buttons that run down the placket in the front of the garment to the waist. The Protestant also states that the garment has side loops for a self-fabric belt and pockets on each side, near the bottom of the hem. The Protestant describes the bottom portion of the garment as having an obvious A-line flair and that the width is significantly more than twice the width of the waist. As to the length of the garment, the Protestant states: “While the dress may be considered short, it goes far below the mid-thigh level, reaching close to the knee.” The Protestant submitted a photograph of a garment marked “14074” with the protest, identified as Exhibit A. However, the garment in Exhibit A is mid-thigh in length, in contrast to its description of Style #14074 in the Protest submission. The garment shown in Exhibit A does not appear to be the same garment as either sample submitted to CBP. The materials and samples submitted by the Protestant are not internally consistent and contain too many discrepancies to discount. In addition to the submission of completely different garments and an altered hang tag of the garment submitted to CBP Headquarters, the description of Style #14074 found in Protestant’s Protest submission is inconsistent with not only both garments submitted, but also the photograph of a garment also identified as “Style #14074” (Exhibit A) that was submitted with the Protest. For instance, the garment submitted to CBP Headquarters does not reach close to the knees, in contrast to Mona Lisa’s description of the garment in its Protest submission. In addition, the width of the garment as measured at the bottom is not twice that of the waist, let alone “significantly more than twice the width of the waist.” The production sketch for Style #14074 that was submitted by Protestant depicts a drawing of a women’s upper body garment, with “# 14074” written in smudged ink. Both the measurements and the drawing are ambiguous as to what type of garment was produced. The garment depicted on the production sketch for Style #14074 is inconsistent with the sample of #14074 (the dress) and the measurements listed do not match the measurements of the Style #14074 (the dress) submitted to CBP Headquarters. The production sketch is also undated. The Protestant’s July 12, 2011 submission does not establish a clear connection between the sample submitted and the entries at issue, as the production sketch does not match either sample. The clear majority of the actual measurements of the second sample of Style #14074 (the dress) provided to CBP Headquarters do not match the measurements of the Style #14074 provided on the submitted production sketch. The only consistent measurement between the garment and the production sketch is the width of the front bottom hem, 27 inches. However, the width is not “significantly more than twice the width” of the waist on either the garment or the production sketch. Also, the length of Style #14074 (the dress) provided to CBP Headquarters at its front from the high point of the shoulder (hps) is 33 inches. When measured center back, the length is 32 ½ inches. However, the submitted production sketch states that the “center front length from hps [sic] is 34 inches”. The sleeve openings are approximately 15 inches, and not 7 inches. According to the production sketch, the waist measures 17.5 inches; however, the front of the garment measures 16 inches with a total waist width of 32 inches measured front to back. Finally, even the self- fabric belt that accompanied the sample is both a different length and width than measurements provided for the item in the production sketch, as the sample self-fabric belt measures 1.8” x 58”, and not 2” x 52”. In addition, there are noticeable style differences between the sample provided and the submitted production sketch. For example, Style #14074 (the dress) provided to CBP Headquarters features two short rows of horizontal stitches which are located on each side of the garment underneath the neckline that provide darts. However, the production sketch does not denote any such stitching. On the submitted production sketch, the belt is shown to be at the waist and the frontal opening stops well above the belt. However on the sample provided, the belt (as indicated by the belt loops) is placed on the hips and meets the bottom of the frontal opening. On the submitted production sketch, the pockets are just below the fabric self-tie belt, whereas the pockets on the sample are also much closer to the hem than they appear on the production sketch. Moreover, the production sketch does not mention pockets in its list of measurements. Finally, the affidavits submitted by Protestant are inadmissible hearsay, as they do not meet the exception to the Federal Rules of Evidence, Rule 803(6). The Federal Rules of Evidence define hearsay as a “statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Under evidentiary rules, hearsay testimony is not admissible unless it meets one of the exceptions, e.g., documentation kept in the ordinary course of business. Under Fed. R. Evid. 803(6), a written assertion may be admitted if it was kept in the ordinary course of business: A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course or regularly conducted business activity, and if it was the regular practice of that business activity to make a memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness… Here, it is not apparent that the affidavits and the production sketch meet the regular course of business exception as they are undated and do not identify the name of the person providing the document. The affidavits state they are for Mona Lisa’s internal purposes, but not whether for purposes at the time of shipment. Even if the affidavits met an exception to the Federal Rules of Evidence, they do not support Protestant’s contention that it imported dresses, since the affidavits describe the shipment as “tunics,” consistent with the invoices. In the same vein, the production sketch does not match either garment submitted. As such, the Protestant has not presented any acceptable evidence that demonstrates that the Port incorrectly classified the merchandise as blouses in heading 6206, HTSUS. See HQ W967537, dated November 8, 2006, HQ 230089, dated May 26, 2004, and HQ 229249, dated March 15, 2002. Style #s 14075 and 9801 Protestant has submitted conflicting evidence of style #s 14075 and 9801. Samples were not provided for Styles #14075 and #9801. In its Protest Submission, Protestant submitted descriptions and photographs of a woman wearing style #s 14075 and 9801 (Exhibits B and C, respectively). The Protestant describes Style #14075 as having a V-neckline, pleats adorning the front, long sleeves, a self-fabric belt that loops on the sides of the garment, and “short slits on the sides of the skirt”. Protestant asserts that the bottom hem of the garment extends “well past the mid-thigh, reaching almost the knee area.” Protestant states that the garment has an A-line, with a flair at the bottom that is “50% more than the waist width”. The submitted photograph (Exhibit B) of Style #14075, however, shows that the garment is instead mid-thigh as the hem is approximate to the wearer’s fingertips, and shows that Style #14075, lacks an A-line flair. With respect to Style #9801, the Protestant describes the garment as having a long V-neckline, long sleeves, and a self-fabric belt. The protestant also states that the belt is attached to the garment by a long band sewn at the back. Protestant describes the garment Style #9801 as having an “A-line flair” with a “flair of about 25% from the waist to the bottom of the skirt.” However Style #9801 as depicted in Exhibit C lacks an A-line flair. The lower portion of the garment falls straight from the waist. Although the protestant states “the garment is longer than mid-thigh length”, Exhibit C shows that the U-bottom hem of the garment only reaches the upper thigh level and does not extend to the wearer’s fingertips. In concluding our review of the Protest, we find that Protestant has not met its burden of proof. CBP will consider all relevant allegations that are supported by competent evidence. In acting on a protest, however, CBP lacks the legal authority to assume facts and arguments that are not supported. See HQ 953602, dated July 2, 1993. In this case, the administrative record shows that the port classified all three styles of the garments as cotton tops on the basis of a sample submitted to the port. The sample submitted to the port is consistent with the invoices describing the garments as a “top” or as a “tunic”. A review of the entry documentation for all three styles indicates that the Protestant submitted invoices which described the merchandise as “women cotton tunic top” and “100% cotton woven powerloom ladies tunic.” Protestant has provided conflicting and unreliable information as support for the protest: two different garments as representative of #14074; the production sketch for #14074 is not consistent with either of the samples provided to CBP, or the description in the Protest submission; the tag for #14074 (the dress) has no indicia of reliability to substantiate the sample is in fact #14074; the production sketch has no indication that it was produced in the ordinary course of business, or any indicia of authenticity such as a date; Exhibits B and C are inconsistent with the narrative description of styles #14075 and 9801; and Exhibits B and C have no indicia of authenticity or reliability that they in fact depict styles #14075 and 9801. In this case, the documentation and samples submitted in support of the protest do not have sufficient indicia of reliability and credibility to substantiate that CBP incorrectly classified the merchandise based on its review of the documentation submitted with the entries and the sample. Protestant has failed to meet its burden of proof to establish that the garments that were imported were women’s dresses of subheading 6204.42, HTSUS, and not garments of subheading 6206.30.3041, HTSUS. Accordingly, we find that CBP’s classification of the entries was proper. HOLDING The subject entries were properly reliquidated. The port correctly liquidated Style #14074, #14075, and #9801 as classified in heading 6206, HTSUS, and specifically in subheading 6206.30.40, HTSUS, which provides for, “Women's or girls' blouses, shirts and shirt-blouses: Of cotton: Other: Women’s…" The column one, general rate of duty at the time of entry was 15.4 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