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HQ 957062

April 5, 1995

CLA-2 R:C:T 957062 CAB


TARIFF NO.: 6202.93.5011

Regional Commissioner of Customs c/o Protest and Control Section
6 World Trade Center, Rm. 761
New York, NY 10048-0945

RE: Request for Further Review of Protest No. 1001-3-108990, timely filed December 22, 1993; Additional U.S. Note 2, Chapter 62, HTSUSA

Dear Sir:

This is a decision on application for further review of a protest timely filed by Charming Shoppes on December 22, 1993.


The merchandise at issue are women's anorak style jackets which are referred to as Style 23100. The garments are comprised of a shell that is 30 percent wool, 30 percent polyester, 30 percent acrylic, 5 percent nylon and 5 percent other materials. The lining of the garment is made of 100 percent nylon woven fabric. The protestant states that the lining of the garments are coated with a plastic material that renders them water resistant for tariff classification purposes.

The protest addresses several issues dealing with the entry in question. A review of the file discloses that the subject merchandise was entered on June 25, 1992, and automatically liquidated on June 18, 1993. The entry was reliquidated offline on September 7, 1993, and a bill was issued to protestant on September 24, 1993.

Protestant contends that the assessment of increased duties was untimely because the entry was reliquidated 98 days (i.e., on September 24, 1993) after the date of the original liquidation. Hence, it was untimely and contrary to the requirements of 19 CFR Sect. 173.3 which provides that the district director may voluntarily reliquidate an entry within 90 days of the date of the original liquidation.

Alternatively, the protestant asserts that should Customs determine the reliquidation was timely, the rate advance on reliquidation of the entry was incorrect. The protestant further asserts that the merchandise at issue are classifiable as water resistant jackets in subheading 6202.93.4500 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

At time of entry, the protestant provided Customs with a lab report from an independent laboratory that stated that the subject merchandise was water resistant for tariff classification purposes. The protestant requests that we accept the results of the private lab as indicative of the entire shipment of goods or have the same sample tested a second time by Customs. Prior to the protestant having the sample tested at an independent lab, Customs conducted a water resistant test on a random sample from the subject shipment of goods and the garment did not pass the test for water resistancy. The protestant disputes the results of Customs lab analysis.


I. Was the subject reliquidation untimely?

II. Whether the subject merchandise is water resistant for tariff classification purposes?



Initially, we note that the protest was timely filed under the statutory and regulatory provisions for protests (19 U.S.C. Sect. 1514 and 19 CFR Part 174). We also note that liquidation of an entry is a protestable matter pursuant to 19 U.S.C Sect.

Liquidation of an entry of merchandise constitutes the final computation by Customs of all duties (including any dumping or countervailing) accruing on that entry. See generally, Ambassador Division of Florsheim Shoes v. United States, 748 F.2d 160, 162 (Fed. Cir. 1984). Section 501 of the Tariff Act of 1930, as amended (19 U.S.C. Sect. 1501), provides:

A liquidation made in accordance with section 1500 of this title or any reliquidation thereof made in accordance with this section may be reliquidated in any respect by the appropriate customs officer on his own initiative, notwithstanding the filing of a protest, within ninety days from the date on which notice of the original liquidation is given the importer, his consignee or agent.***

Protestant contends that the subject reliquidation under 19 U.S.C. Sect. 1501 was invalid because it was carried out after the 90-day limit set forth in the statute.

As stated in the FACTS portion, the subject entry was reliquidated offline on September 7, 1993. This office has been informed that an offline reliquidation is posted in the bulletin of entries liquidated just like any other liquidation or reliquidation. Customs records indicate that the bulletin notice was published on September 7, 1993. The Court of International Trade has stated that "proper notice of liquidation refers to the bulletin notice of liquidation." See Penrod Drilling Co. v. United States, 13 CIT 1005, 1009, 727 F. Supp. 1463, 1467 (1989), aff'd, 925 F.2d 406 (Fed. Cir. 1991); see also, Goldhofer Fahrzeugwerk GmbH v. United States, 13 CIT 54, 706 F. Supp. 892, aff'd, 885 F.2d 858 (Fed. Cir. 1989). It is the importer who has the obligation to check all notices posted to determine whether its goods have been liquidated. Omni U.S.A., Inc. v. United States, 11 CIT 480, 483, 663 F. Supp. 1130, 1133 (1987), aff'd 840 F.2d 912 (Fed. Cir. 1988), cert denied, 488 U.S. (1988).

The Customs Service obligation was met once it posted the required offline liquidation bulletin notice. Pursuant to 19 CFR 173.3(b), "[n]otice of a voluntary reliquidation shall be given in accordance with the requirements for giving notice of the original liquidation." The bulletin notice is the only required notice. See 19 CFR Sect. 159.9(a). Contrary to protestant's assertion, the entry was not reliquidated on September 24, 1993. It was the computer generated bill for the additional duties that was issued on said date. Therefore, there was a timely reliquidation of the subject entry.


Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI's taken in order.

At issue is whether the subject merchandise is properly classifiable as water resistant garments under Heading 6202 HTSUSA, which provides for women's or girls' overcoats, capes, cloaks, anoraks (including ski jackets), windbreakers and similar articles of man-made fibers.

Additional U.S. Note 2, Chapter 62, HTSUSA, governs the classification of garments under subheadings in Chapter 62 which specifically provide for "water resistant" garments. The note is as follows, in pertinent part:

[T]he 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 protestant contends that due to Customs delay, he was only able to procure one stock sample of the merchandise at issue. The protestant sent this stock sample to an independent laboratory and he states that it passed the test for water resistance in accordance with Additional U.S. Note 2, Chapter 62, HTSUSA. A copy of the independent lab report was attached to the subject protest. The protestant requests that Customs test this particular stock sample for water resistancy. The protestant further asks that if the sample passes the water resistant test that the entry be reliquidated. It is our opinion, however, that even if a sample were available at this time, Customs would not support the testing of the protestant's later sample as Customs has no substantive proof that the sample is representative of the initial shipment.

In Exxon Corp. v. United States, 462 F. Supp. 378, 81 Cust. Ct. 87, C.D. 4772 (October 16, 1978), the court stated that absent a conclusive showing that the method for determining water resistance used by Customs is in error, or that the results are erroneous, there is a presumption that the results obtained by Customs are correct. In this case, Customs has followed the testing standards set forth in the tariff schedule; there is no substantive evidence that has been presented to this office which incontrovertibly establishes that either the methods used by Customs, or the results obtained, were erroneous. Absent this evidence, Customs results stand.

The Customs lab report determined that the lining from the back, right front, and right sleeve of the tested garment failed the test for water resistancy. Customs has consistently determined that garments are viewed in their entirety, and if part of the garment fails the test, then the garments at issue are not determined to be water resistant for tariff classification purposes. See Headquaters Ruling Letter 951756, dated, June 15, 1993.

As the testing procedures performed by the Customs lab followed those mandated in the tariff test, this office is of the opinion that the lab findings are conclusive. Moreover, there is no requirement for Customs to accept a sample from the protestant months after reliquidation as a representative sample of the entire entry and test it for water resistancy.


The subject entry was reliquidated offline on September 7, 1993, the eighty-first day after the original liquidation. Thus the subject reliquidation was timely under 19 U.S.C. Sect. 1501.

The subject merchandise was properly classified in subheading 6202.93.5011, HTSUSA, which provides for women's windbreakers and similar articles of man-made fibers. The applicable rate of duty is 29.3 percent ad valorem and the textile restraint category is 635.

The protest should be denied in full and a copy of this ruling should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action.

In accordance with Section 3(A)(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office 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 the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Ruling Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.


John Durant, Director
Commercial Rulings Division

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