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HQ 964760




October 11, 2001

CLA-2-42: RR: CR:TE 964760 JFS

Category: CLASSIFICATION

United States Customs Service
C\O Chief, Residual Liquidation and Protest Branch 1 Penn Plaza, 10th Floor
New York, NY 10119

RE: Decision on Application for Further Review of Protest No. 1001-99-103028; Classification of Ladies Woven Jogging Sets; Water Resistant.

Dear Madam:

This is a decision on an application for further review (AFR) of a protest timely filed on June 23, 1999, by Armen Cargo Service on behalf of Argee America, Inc. The Protest concerns the classification and liquidation of two entries of ladies jogging sets entered on September 2, 1998, and October 26, 1998.

FACTS:

You classified the tops of the jogging sets in subheading 6202.93.5011, Harmonized Tariff Schedule United States Annotated (HTSUSA), and the bottoms in 6204.63.3510, HTSUSA.

Subheading 6202.93.5011, HTSUSA, is the provision for “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: Anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets): Of man-made fibers: Other: Other: Other: Other, Women’s,” with a general column one duty rate of 28.8 percent ad valorem.

Subheading 6204.63.3510, HTSUSA, is the provision 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 synthetic fibers: Other: Other: Other: Other, Other, Trousers and breeches: Women’s,” with a general column one duty rate of 29.7 percent.

The protestant claims that the tops should be classified in subheading 6202.93.4500, HTSUSA, which is the provision for ”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: Anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets): Of man-made fibers: Other: Other: Other: Water resistant,” with a general column one duty rate of 7.4 percent ad valorem.

The Protestant claims that the bottoms should be classified in subheading 6204.63.3000, HTSUSA, which is the provision 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 synthetic fibers: Other: Other: Other: Other: Water resistant trousers or breeches,” with a general column one duty rate of 7.4 percent ad valorem.

In support of their claim that the garments at issue are “water resistant,” the Protestant submitted four separate test results from tests conducted by two different laboratories. The garments were tested to determine if, under a head pressure of 600 millimeters, not more than 1.0 gram of water penetrates the fabric after two minutes. Three of the tests were conducted by Vartest Laboratories, Inc., on style 2767, which is a jacket with a shell composed of 100% nylon coated with a 600 mm polyurethane. Report number A020999A reports that there was 0.23g average water penetration. Report number A020999B also reports that there was 0.23g average water penetration. Report number A020999C reports that there was 0.56g average water penetration.

SGS Korea Co., Ltd., tested two samples of the fabric, described as style 2748CA, used to make the outer shells of the garments. The report, number 6901/011736, states that there was zero water penetration for both samples.

The Customs Laboratory conducted the same test for water resistance on samples taken from the imported jogging suits. Both the tops and the bottoms were tested. The Customs Laboratory determined that the garments allowed more than 1.0g of water penetration.

In further support of their claim that the jogging suits are water resistant, the Protestant submitted a statement from Se Wha International Co., LTD., stating that they had shipped 100% nylon taffeta crinkle fabric with 600 mm polyurethane coating to the manufacturer of the garments. This fabric was to be used in manufacture of the garments. Additionally, the Protestant contends that the garments are ordered with specific instructions that the garments have the proper water resistant coating.

ISSUE:

Whether there is sufficient evidence to overcome the determination by Customs that the jogging suits under consideration are not water resistant.

LAW AND ANALYSIS:

Classification under the HTSUSA 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.

For the purposes of subheadings 6202.93.4500, HTSUSA, and 6204.63.3000, HTSUSA, Additional U.S. Note 2, to Chapter 62 states: :
“water resistant" means that garments classifiable in . . . subheadings [6202.93.4500 and 6204.63.3000] must have a water resistance such that, under a head pressure of 600 millimeters, not more than 1 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 instant garments have an application of polyurethane applied to the inside of the exterior shell thereby meeting the requirement that they have an application of rubber or plastics. The Customs Laboratory results show that the garments are not water resistant, as defined by Additional U.S. Note 2 to Chapter 62. However, the Protestant’s lab results show that the garments are water resistant. Accordingly, classification of the instant garments will hinge upon which lab results are used to determine the water resistance of the garments.

Pursuant to 28 U.S.C. § 2639 (a) (1) (1994), Customs enjoys a statutory presumption of correctness. Thus an importer has the burden to prove by a preponderance of the evidence that a Customs decision was incorrect. Ford Motor Company v. United States, 157 F.3d 849, 855 (Fed. Cir. 1998). Furthermore, “[i]t is well settled that the methods of weighing, measuring, and testing merchandise used by customs officers and the results obtained are presumed to be correct.” Aluminum Company of America v. United States, 60 C.C.P.A. 148, 151, 477 F.2d 1396, 1398 (1973) (hereinafter Alcoa). Absent a conclusive showing that the method for determining water resistance is in error, or that Customs' laboratory results are erroneous, there is a presumption that the results obtained by a Customs laboratory are correct. See Exxon Corp. v. United States, 462 F. Supp. 378, 81 Cust. Ct. 87, C.D. 4772 (1978). “If a prima facie case is made out, the presumption is destroyed, and the Government has the burden of going forward with the evidence.” Alcoa, 477 F.2d at 1399.

In Alcoa, to overcome the presumption of correctness afforded Customs, the importer had several samples which he was able to establish were taken from the shipment as it arrived in the U.S. at the same time the samples he sent to Customs for analysis. He had those samples analyzed by both his own chemists and two independent labs using the published Customs Lab Method, which was considered reliable by both sides. All their results were provided to the Court and they were consistent.

While the Protestant has provided results contrary to those of the Customs Laboratory, the Protestant has failed to establish a prima facie case that the method used by Customs to determine water resistance is in error, or that the Customs laboratory results are erroneous. This is due in large part to the incompleteness and questionable nature of the lab results submitted by the Protestant. Unlike the plaintiff in Alcoa, the protestant here does not have any laboratory analysis of samples taken from any shipment. Additionally, the Protestant did not submit any lab results from tests conducted on the bottoms of the jogging sets. Moreover, the results from the tests conducted by SGS Korea Co., Ltd., that there was 0g of water penetration of the fabric used in the manufacture of the garments, are suspect. It is highly unlikely that the fabric allowed no water penetration when placed under a head pressure of 600 millimeters for two minutes. Furthermore, the submission of such questionable lab results by the Protestant only serves to diminish the credibility of all of the documents submitted with the Protest. Accordingly, the Customs laboratory results are deemed correct and conclusive on this matter.

HOLDING:

The Protest is DENIED. The tops of the garments are classified under subheading 6202.93.5011, HTSUSA, textile category 635, which provides for: “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: Anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets): Of man-made fibers: Other: Other: Other: Other, Women’s,” with a general column one duty rate of 28.8 percent ad valorem.

The bottoms of the garments are classified under subheading 6204.63.3510, HTSUSA, textile category 648, 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 synthetic fibers: Other: Other: Other: Other, Other, Trousers and breeches: Women’s,” with a general column one duty rate of 29.7 percent.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, Revised Protest Directive, dated August 4, 1993, a copy of this decision attached to Customs Form 19, Notice of Action, should be provided by your office to the protestant no later than 60 days from the date of this decision. Since there are no reliquidations involved in this protest, you should be able to accomplish this direction prior to the 60 day period.

Sixty days from the date of this decision the Office of Regulations and Rulings will take steps to make this decision available to Customs personnel, and to the general public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act and other public access channels

Sincerely,

John Durant, Director
Commercial Rulings Division


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