HQ 0955909 - NYRL 876026 (9/14/92) affirmed; a ruling letter will be applied to subsequent transactions only if the articles the subject of the later importations are identical to the merchandise classified in the original ruling; 19 CFR 177.9(b); applicability of a ruling to a transaction is contingent on the facts; absent a showing that Customs failed to utilize proper testing procedures, a presumption exists that the Customs laboratory results are correct; Exxon Corp. v. United States, 462 F. Supp. 378, 81 Cust. Ct. 87, C.D. 4772 (October 16, 1978); Customs lab results control classification and determine applicability of previously issued rulings. - United States International Trade Commision Rulings

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HQ 955909

April 25, 1994

CLA-2 CO:R:C:T 955909 SK

CATEGORY: CLASSIFICATION

TARIFF NO.: 6201.93.3000

District Director
U.S. Customs Service
300 S. Ferry Street
Terminal Island, CA 90731

RE: NYRL 876026 (9/14/92) affirmed; a ruling letter will be applied to subsequent transactions only if the articles the subject of the later importations are identical to the merchandise classified in the original ruling; 19 CFR 177.9(b); applicability of a ruling to a transaction is contingent on the facts; absent a showing that Customs failed to utilize proper testing procedures, a presumption exists that the Customs laboratory results are correct; Exxon Corp. v. United States, 462 F. Supp. 378, 81 Cust. Ct. 87, C.D. 4772 (October 16, 1978); Customs lab results control classification and determine applicability of previously issued rulings.

Dear Sir:

This is in response to your request for reconsideration of New York Ruling Letter (NYRL) 876026, issued to Sunderland of Scotland, Inc. on September 14, 1992, concerning the classification of three styles of men's pullover jackets with "Scotchguard" application. No samples were submitted to this office for examination.

FACTS:

In NYRL 876026 three styles of men's pullovers, referenced style numbers 1114, 1111 and 1117, were classified under subheading 6201.93.3000, HTSUSA, which provides for, in pertinent part, men's water resistant anoraks and windbreakers. Samples of the subject merchandise were submitted to the New York Customs laboratory where they were tested for the presence of plastics and to determine whether the garments were water resistant for purposes of classification within Chapter 62, HTSUSA, when tested in accordance with AATCC Test Method 35-1985. The laboratory results indicated that the garments passed the water resistant test, and the garments were classified accordingly.

In July, 1993, a commodity team at the Los Angeles Airport took samples of the style numbers tested in NYRL 876026, prior to their release from Customs' custody, to the Los Angeles Customs laboratory for analysis. The conclusion of this second analysis was that the garments did not pass the AATCC Test Method 35-1985 and therefore were not classifiable as water resistant articles.

It is your contention that the second analysis performed at the Los Angeles Customs laboratory is controlling for classification purposes in that Customs had control of the samples from the time of their arrival in the United States to completion of the laboratory analysis. It is on this basis that you seek revocation of NYRL 876026 and reclassification of styles 1114, 1111 and 1117 to reflect the fact that they are not water resistant.

ISSUE:

Is a previously issued ruling letter applicable to subsequent transactions where a laboratory test result indicates that the merchandise the subject of the subsequent importation is different than the merchandise classified in the ruling?

LAW AND ANALYSIS:

The application of tariff classification rulings to subsequent importations is regulated by section 177.9(b)(2), Customs Regulations (19 CFR 177.9(b)(2)). This section reads:

[E]ach ruling letter setting forth the proper classification of an article under the provisions of the Harmonized Tariff Schedule of the United States will be applied only with respect to transactions involving articles identical to the samples submitted with the ruling request or to articles whose description is identical to the description set forth in the ruling letter.

In situations where a subsequent transaction does not conform to the facts set forth in a previously issued ruling, that ruling will not govern classification. Ruling letters are fact specific and their application to subsequent transactions is contingent on all material facts being identical.

In the instant case, the garments submitted with Sunderland of Scotland, Inc.s' request for a binding classification ruling were determined to be water resistant by the New York Customs laboratory. There is no reason to hold these laboratory results suspect, nor has this office been provided with any information which would serve as grounds for a reversal of the holding in NYRL 876026. As the court stated in Exxon Corp. v. United States, 462 F. Supp. 378, 81 Cust. Ct. 87, C.D. 4772 (October 16, 1978), absent a showing that Customs failed to utilize proper testing procedures, there is a presumption that the results obtained by the Customs laboratory are correct.

Assuming that the testing methods employed by both the New York and Los Angeles Customs laboratories are correct, this office does not see the need to revoke NYRL 876026, nor to reject the findings of the Los Angeles Customs lab merely because they are at variance with the initial findings of the New York Customs lab with regard to the same garment styles. Indeed, given the variability of plastics applications, the fact that different shipments of the same styles of garments resulted in different degrees of water resistancy when tested in accordance with the AATCC 35-1985 is not surprising. We recognize that future shipments of the above- referenced styles may very well pass the water resistant test, in which case application of NYRL 876026 would be warranted.

In situations where a Customs laboratory test has been performed on merchandise purporting to be "identical" to merchandise the subject of a prior ruling, where the lab test reveals that the merchandise the subject of the subsequent transaction is not the same, the classification of these goods will be based on the lab's findings and the original ruling will not control. To hold otherwise would increase the likelihood of importers' relying on previously issued rulings which are no longer representative of the merchandise currently being imported. The opportunity for abuse in this situation is considerable.

HOLDING:

NYRL 876026 is affirmed.

If style numbers 1114, 1111 and 1117 are determined to be water resistant when tested by a Customs laboratory in accordance with AATCC Test Method 35-1985, classification is proper under subheading 6201.93.3000, HTSUSA, which provides for other water resistant men's anoraks, windbreakers and similar articles, dutiable at a rate of 7.6 percent ad valorem. The applicable textile quota category is 634.

If laboratory tests reveal that the subject garments are not water resistant, the merchandise is different from that classified in NYRL 876026 and that ruling will not control, as mandated by section 177.9(b)(2), Customs Regulations (19 CFR 177.9(b)(2)). In instances where styles 1114, 1111 and 1117 are not deemed water resistant when tested in accordance with AATCC Test Method 35- 1985, classification is proper under subheading 6201.93.3511, HTSUSA, which provides for other men's anoraks, windbreakers and similar articles, dutiable at a rate of 29.5 percent ad valorem. The applicable textile quota category is 634.

Sincerely,

John Durant, Director

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