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HQ W968376




August 22 2007

CLA2 OT:RR:CTF:TCM W968376 HMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6204.62.4020

Port Director
U.S. Customs and Border Protection
555 Battery St., Room 426
San Francisco, CA 94111

ATTN: Ms. Julie Engelbertson

RE: Application for Further Review of Protest No. 2809-06-100155; Ladies’ Cotton Woven Pants

Dear Port Director:

This is our decision on the Application for Further Review of Protest No. 2809-06-100155, timely filed by the Law Offices of George R. Tuttle, A P.C., on behalf of DYM Associates (hereinafter referred to as “the protestant”), concerning the classification of certain ladies cotton woven pants under the Harmonized Tariff Schedule of the United States (“HTSUS”).

FACTS:

The merchandise under protest is ladies’ cotton woven pants entered into the United States by the protestant between November and December 2004, under subheading 6204.69.9044, HTSUS, as trousers of other textile materials.

Entry Nos. 315-7836461-9, entered November 16, 2004; 315-7836564-0, entered November 19, 2004; 315-7836910-5, entered November 29, 2004; 315-7836911-3, entered November 29, 2004; 315-7836912-1, entered November 30, 2004; 315-7837176-2, entered December 5, 2004. Entry Nos. 315-7836030-2, entered November 5, 2004; 315-7836463-5, entered November 17, 2004; 315-7838117-5; entered December 28, 2004, involved entries for the same merchandise, but were not protested. See infra note 3. The entry documents for the various entries described the merchandise as ladies’ 65% ramie and 35% cotton woven pants. Upon CBP’s request, the protestant forwarded a sample to CBP from Entry No. 315-7836030-2, which CBP received on January 5, 2005, after release of the merchandise. On December 3, 2004, CBP issued a Request for Information, CBP Form 28, requesting a sample for Entry No. 315-7836030-2, entered November 5, 2004. The CBP laboratory tested the sample, a women’s size 5, blue woven pants, and found that it was made of 54% ramie and 46% cotton. Based on this laboratory finding, CBP liquidated Entry No. 315-7836030-2 under subheading 6204.69.9044, HTSUS, as classified by the protestant.

On December 28, 2004, the protestant made Entry No. 315-7838117-5 for the same merchandise, which CBP selected for examination. The CBP laboratory tested a sample from this entry, a women’s size 13, yellow woven pants, and determined that the outer yellow woven portion of the garment was composed wholly of 100% cotton. Thus, on February 18, 2005, CBP seized the protestant’s merchandise covered by Entry No. 315-7838117-5, based on the laboratory’s finding that the merchandise was made of 100% cotton. Following the merchandise’s seizure, on September 27, 2005, CBP issued a Notice of Action, CBP Form 29, to the protestant reclassifying the merchandise for eight entries made between November and December 2004, under subheading 6204.62.4020, HTSUS, as trousers, of cotton, which CBP subsequently liquidated on December 16, 2005, under the same subheading. The Notice of Action, CBP Form 29, dated September 27, 2005, refers to Entry Nos. 315-7836463-5; 315-7836461-9; 315-7836564-0; 315-7836910-5; 315-7836912-1; 315-7837176-2; 315-7836911-3; and, 315-7836030-2. The record shows that liquidation on December 16, 2005, is a re-liquidation of the subject entries, which were previously liquidated on October 14, 2005. Upon verification with the port, the Notice of Action’s reference to 315-7836536-5 appears to be a transcription error and it is not part of the subject protest. Also, Entry Nos. 315-7836463-5 and 315-7836030-2 referred to in the Notice of Action, were liquidated as entered by the protestant and are not part of the subject protest.

On March 2, 2006, counsel for the protestant filed the subject protest against CBP’s reclassification of merchandise covered by six entries. Entry Nos. 315-7836461-9; 315-7836564-0; 315-7836910-5; 315-7836911-3; 315-7836912-1; and 315-7837176-2. As stated supra note 3, Entry Nos. 315-7836463-5 and 315-7836030-2 were liquidated as entered by the protestant and are not part of the subject protest. Counsel contends that the merchandise is classifiable under subheading 6204.69.9044, HTSUS, as trousers of other textile materials. Counsel further contends that Entry No. 315-7836461-9, entered November 16, 2004, liquidated by operation of law one year after the date of entry under subheading 6204.69.9044, HTSUS.

ISSUE:

Whether the women’s cotton pants are classifiable under subheading 6204.62.4020, HTSUS, as trousers of cotton, or under subheading 6204.69.9044, HTSUS, as trousers of other textile materials.

LAW AND ANALYSIS:

Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a)(2) as a decision on the classification and rate and amount of duties chargeable. The protest was timely filed, within ninety days of liquidation of the first entry for entries made before December 18, 2004, and 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)). Entry Nos. 315-7836461-9, entered on November 16, 2004; 315-7836564-0, entered on November 19, 2004; 315-7836910-5, entered on November 29, 2004; 315-7836911-3, entered on November 29, 2004; 315-7836912-1, entered on November 30, 2004; and 315-7837176-2, entered on December 5, 2004. All the entries were re-liquidated on December 16, 2005, and the protest was received on March 2, 2006. Further Review of Protest No. 2809-06-100155 is properly accorded to the protestant pursuant to 19 C.F.R. § 174.24 because the decision against which the protest was filed involves questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts.

Merchandise is classifiable under the HTSUS, in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides, in part, that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.

The HTSUS subheadings under consideration for the subject merchandise are as follows:

6204 Women’s or girl’s 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.

Of other textile materials:

6204.69.90 Other.

There is no dispute that the subject merchandise is described by heading 6204, HTSUS. The sole issue is whether the subject women’s pants are classifiable as of other textile materials, classifiable under subheading 6204.69.90, HTSUS, or as of cotton, classifiable under subheading 6204.62.40, HTSUS, as determined by CBP. Counsel for the protestant advances two main claims for classification of the merchandise as trousers of other textile materials under subheading 6204.69.90, HTSUS. Counsel first contends that the subject women’s cotton woven pants are classifiable under subheading 6204.69.90, HTSUS, on the premise that the protestant ordered the merchandise to be made from fabric containing 65% ramie and 35% cotton and that the foreign supplier accepted the order and invoiced the shipments as goods made of 65% ramie and 35% cotton. Counsel thus claims that the presumption is that the goods were properly described and invoiced, and unless there is some evidence of impropriety, the presumption is that the parties are in compliance with the law and have properly described the merchandise.

Counsel’s second argument in support of the protestant’s classification is that the first entry made on November 5, 2004, Entry No. 315-7836030-2 which CBP liquidated as entered by the protestant, is persuasive evidence that the merchandise on subsequent shipments, made at the same factory, was made of 65% ramie and 35% cotton. Counsel contends that CBP has no evidence that the subject merchandise was made from 100% cotton, as asserted in the September 27, 2005, Notice of Action. Counsel further contends that to the protestant’s knowledge there are no prior discrepancies as stated in the Notice of Action; and, that CBP based its decision to classify the subject women’s pants as of 100% cotton on merchandise entered under another entry, Entry No. 315-7838117-5, which CBP selected for examination and seized because the CBP laboratory found it was made of 100% cotton.

Counsel also claims, as further evidence supporting the protestant’s position, that on November 14, 2005, CBP liquidated Entry No. 315-7836463-5 a year later, as entered by the protestant, which confirms that the protestant’s classification was correct. Counsel additionally points out that Entry No. 315-7836461-9, liquidated by operation of law one year after the date of entry as entered under subheading 6204.69.9044, HTSUS, and that CBP’s attempted liquidation on December 16, 2005, is null and void.

It is well settled that imported merchandise must be classified with reference to its condition when imported. In this case, CBP tested two samples from two entries of the same merchandise. On January 13, 2005, the CBP laboratory found that a sample from Entry No. 315-7836030-2, received by CBP on January 5, 2005, after release of the merchandise, was made of 54% ramie and 46% cotton. On January 31, 2005, the CBP laboratory tested a second sample from Entry No. 315-7838117-5, obtained by CBP directly from a shipment it selected for examination and determined that the outer woven portion of this sample was made of 100% cotton. We are of the view that the finding of the CBP laboratory for the second sample is conclusive in determining the classification of the subject merchandise. With regard to counsel’s argument that there is no evidence provided to the protestant to support CBP’s decision to reclassify the subject merchandise as of cotton, we note that a copy of this laboratory report may be obtained by filing a Freedom of Information Act (“FOIA”) request with the appropriate office.

We note that the sample obtained by CBP is directly linked to the shipment covered by Entry No. 315-7838117-5, and that the test conducted by the CBP laboratory on the sample from this entry carries more weight than the test conducted on the sample obtained from the protestant and produced after the release of the merchandise. Inasmuch as the CBP laboratory has confirmed that a sample directly obtained from a shipment held by CBP for examination is made of 100% cotton, we find that, for classification purposes, CBP has held that a garment is classifiable according to the outer shell of a garment. See HQ 952437, dated October 23, 1992, HQ 952206, dated January 27, 1993, and HQ 081637, dated August 17, 1988. the subject merchandise covered by the six entries at issue in this case is classifiable under subheading 6204.62.40, HTSUS, as trousers of cotton.

We disagree with counsel’s claim that the protestant’s classification of the subject merchandise is correct because the protestant ordered the merchandise to be made of 65% ramie and 35% cotton and the supplier accepted the order and invoiced the goods as made of 65% ramie and 35% cotton. The fact that the protestant classified the merchandise according to the entry documentation does not obviate CBP’s finding that the merchandise was made of 100% cotton, and that it was therefore not properly classified by the protestant. We note that pursuant to section (“§”) 1499 of Title 19, United States Code (“U.S.C.”), CBP has the authority to detain and examine the merchandise to confirm its classification. CBP examined a sample it obtained from a subsequent shipment of the same merchandise and found it to be discrepant with the description on the entry documentation previously submitted by the protestant. The second test conducted by CBP’s laboratory that found the merchandise to be made of 100% cotton diminished the credibility of the entry documentation submitted by the protestant and made it unreliable for classification purposes. As such, it was reasonable for CBP to conclude that all of the same merchandise entered by the protestant was made of 100% cotton and to reclassify it under subheading 6204.62.4020, HTSUS.

Regarding counsel’s second argument that the first CBP laboratory test on a sample of merchandise covered by Entry No. 315-7836030-2, entered November 5, 2004, confirmed the protestant’s classification and that CBP lacked evidence that the subject merchandise was made of 100% cotton, we note that the second January 31, 2005 test conducted on a sample directly obtained by CBP from a detained shipment contradicts counsel’s assertion that there is no evidence showing that the subject merchandise was made of 100% cotton. See Supra, note 7. As stated above the second test conducted on a sample from Entry No. Entry No. 315-7838117-5 carries more weight than the test of January 13, 2005, conducted on a sample submitted by the protestant after release of the merchandise. The second test showed that the merchandise was made of 100% cotton and thus CBP correctly reclassified the merchandise under subheading 6204.62.4020, HTSUS, as trousers, made of cotton. We note that Entry No. 315-7836463-5, which counsel advances as evidence supporting the protestant’s classification, was included in the September 27, 2005, Notice of Action that reclassified the protestant’s merchandise under subheading 6204.63.4020, HTSUS. The merchandise covered by Entry No. 315-7836463-5 should have thus been reclassified under subheading 6204.62.4020, HTSUS, but due to a CBP error, this entry liquidated as entered on November 14, 2005.

With regards to counsel’s claim Entry No. 315-7836461-9, entered on November 16, 2004, liquidated by operation of law, the record shows that CBP first liquidated the subject entry on September 30, 2005, and subsequently re-liquidated it on October 14, 2005, November 4, 2005, December 9, 2005, and December 16, 2005. CBP thus liquidated the subject entry within the required time frame. See 19 USC § 1501, which provides for re-liquidation within 90 days of liquidation. We therefore disagree with counsel that Entry No. 315-7836461-9, entered November 16, 2004, liquidated by operation of law one year after the date of entry and find that CBP’s re-liquidation on December 16, 2005, is valid.

HOLDING:

Under the authority of GRI 1, the women’s cotton woven pants are provided for in heading 6204, HTSUS. They are classifiable under subheading 6204.62.4020, HTSUS, as “Women’s or girls’, trousers : Trousers, : Of cotton: Other: Other: Other, Trousers and breeches: Women’s: Other,” with a column one, general rate of duty at the time of entry of 16.6% and fall within textile quota category 348. The merchandise covered by Entry No. 315-7836461-9, dated November 16, 2004, did not liquidate by operation of law one year after the date of entry as entered. CBP’s liquidation of Entry No. 315-7836461-9 on December 16, 2005, is therefore valid and the merchandise covered by this entry is classifiable under subheading 6204.62.4020, HTSUS, as “Women’s or girls’, trousers : Trousers, : Of cotton: Other: Other: Other, Trousers and breeches: Women’s: Other,” with a column one, general rate of duty at the time of entry of 16.6% and falls within textile quota category 348.

Quota/visa requirements are no longer applicable for merchandise which is the product of World Trade Organization (WTO) member countries. The textile category number above applies to merchandise produced in non-WTO member-countries. Quota and visa requirements are the result of international agreements that are subject to frequent renegotiations and changes. To obtain the most current information on quota and visa requirements applicable to this merchandise, we suggest you check, close to the time of shipment, the “Textile Status Report for Absolute Quotas” which is available on our web site at www.cbp.gov. For current information regarding possible textile safeguard actions on goods from China and related issues, we refer you to the web site of the Office of Textiles and Apparel of the Department of Commerce at otexa.ita.doc.gov.

This protest should be DENIED. In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), 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 Regulations and Rulings of the Office of International Trade will take steps to 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 the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division


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