United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 1998 HQ Rulings > HQ 114538 - HQ 227385 > HQ 226606

Previous Ruling Next Ruling
HQ 226606

April 28, 1998

LIQ-11 RR:CR:EC 226606 SAJ
CLA-2 RR:CR:TE 959066 RH


TARIFF NO.: 6202.93.4500; 6202.93.5021; 6204.63.1200; 6204.63.1505

Area Port Director
U.S. Customs Service
1000 Second Avenue
Suite 2100
Seattle, WA 98104

RE: Protest Number 3001-95-100372; M & L International, Inc.; Liquidation;
Extension of Liquidation; Water Resistant Garments; Testing Garments from
Different Shipments; Identical Merchandise; Additional U.S. Note 2, Chapter 62,
HTSUSA; Presumption of Correctness

Dear Sir:

On May 24, 1995, you forwarded a copy of the Application for Further Review of Protest (AFR) number 3001-95-100372, dated May 24, 1995, to our office concerning the classification and liquidation of water-resistant garments. We apologize for the delay in responding to your request.
On September 17, 1997, two attorneys from my staff met with counsel for the importer to discuss the issues raised in this case. At that time, counsel abandoned his claim that the entries in question were deemed liquidated, based on the recent decision, Intercargo Insurance Company a/k/a International Cargo & Surety Co., (Surety for M. Genauer) v. United States, 83 F. 3d 39 (Fed. Cir 1996), cert denied, 117 S. Ct. 943 (1997).


The law firm of Rode & Qualey filed AFR number 3001-95-100372 on behalf of the importer,
M & L International, Inc. (also referred to in the file as M & L International Company and M & L International Co., I.P), against the liquidation of twelve entries.

The record reflects that the importer filed the entries between August 2, 1993, and September 27, 1993, concerning the importation of water-resistant wearing apparel style numbers: 3021800; 3025200; 3220600; 3023500; 4026300; 5023500; 5025200; 5025208; 5026800; 5220600; 6021400; 6023500; 6025200; 6025400; 80038; 8026300. The importer classified the garments under subheading 6202.93.4500 of the 1993 Harmonized Tariff Schedule of the United States Annotated (HTSUSA), and under subheading 6204.63.1200, HTSUSA. Garments entered under those tariff provisions were dutiable at the general one column rate at 7.6 percent ad valorem at the time of entry.

Seven styles of garments underwent testing at a Customs laboratory. The original samples sent to the laboratory were too small to properly analyze for water-resistance. Thus, Customs issued a Request for Information (CF 28) to obtain swatches of the fabrics used to produce the garments. Additionally, Customs issued a Notice of Extension of Liquidation of the entries as a result of delays in obtaining the swatches.

The laboratory reported that none of the swatches for styles 5025208, 4026300, 3021800, 5026800, 6220600 and 80038 passed the water resistance test set forth in Additional U.S. Note 2, Chapter 62, HTSUSA. The record further reflects that the importer advised a Customs import specialist that styles 3025200, 3023500, 5025200, 5023500, 6025200, 6023500 were the "same" as style 5025208, and that styles 3220600, 3225622 were the "same" as style 5220600.

Based on that information, on December 16, 1993, and December 21, 1993, Customs issued Notices of Action (CF 29) for the rate advance and value advance on all twelve entries, and reclassified the garments under subheading 6202.93.5021, HTSUSA, at 29.5 percent ad valorem, and under subheading 6204.63.1505, HTSUSA, at 17 percent ad valorem.

Liquidation of all twelve entries occurred on March 3, 1995.


Are the garments at issue classifiable as water-resistant under the HTSUSA?


Classification under the HTSUSA is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.

For the purposes of certain specified subheadings, including the subheadings in question, Additional U.S. Note 2, Chapter 62, HTSUSA, reads:

[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.

It 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. United States v. Gage Bros, 1 Ct. Cust. Appls. 439, T.D. 31503; United States v. Lozano, Son & Co., 6 Ct. Cust. Appls. 281, T.D. 35506; Draper & Co., Inc. v. United States, 28 Cust. Ct. 136, C.D. 1400. However, this presumption may be rebutted by showing that such methods or results are erroneous. Sears, Roebuck & Co. v. United States, 3 Ct. Cust. Appls. 447, T.D. 33035; Gertzen & Co. v. United States, 12 Ct. Cust. Appls. 499, T.D. 40697; Pastene & Co., Inc. v. United States, 34 Cust. Ct. 52, C.D. 1677. Moreover, in Consolidated Cork Corp. v. United States, 54 Cust. Ct. 83, C.D. 2512 (1965), the court observed the following:

[T]he final determination in situations where the merchandise approaches the borderline set by the tariff act depends upon the accuracy of the methods used and their application by the chemists who performed the tests. One criterion is whether the test has been established by an appropriate Government agency or is recognized by commercial laboratories or by the trade. Another is whether the results obtained check with a standard or with each other.

Counsel cites Universal Electronics, Inc. v. United States, 113 F. 3d 488 (Fed Cir. 1997), which reiterates the holding in Goodman Manufacturing L.P. v. United States, 69 F. 3d 505 (Fed Cir. 1995) that the presumption of correctness carriers no force as to questions of law. The court stated that the presumption of correctness is:

[A] procedural device that is designed to allocate, between the two litigants to a lawsuit the burden of producing evidence in sufficient quantity. Specifically, the importer must produce evidence (burden of production portion of the burden of proof) that demonstrates by a preponderance (the burden of persuasion portion of the burden of proof) that Customs classification decision is incorrect. The presumption of correctness certainly carries force on any factual components of a classification decision such as whether the subject imports fall within the scope of the tariff provision, because facts must be proven via evidence. (Emphasis in original).

Counsel contends that the presumption of correctness is overcome in this case by evidence presented in independent laboratory reports from Consumer Testing Laboratories which tested style numbers 5025200, 5220600, 5025208 and 80038 and found that they passed the water resistance test in accordance with Additional U.S. Note 2, Chapter 62, HTSUSA. The protestant maintains that its suppliers consistently provided them with certifications or test results from independent laboratories confirming that the garments passed the water resistance test.

Even if we assume, arguendo, that the independent laboratory reports rebut the presumption of correctness of the Customs laboratory reports, the protestant did not prove by a preponderance of the evidence that the methods used by Customs or the results obtained in its reports were erroneous. The protestant failed to reference any errors made by the Customs laboratory or to prove that the methods used or results obtained by Consumer Testing Laboratories were more reliable or accurate. Moreover, we requested, but did not receive, copies of all of the independent laboratory reports referred to by the protestant. Accordingly, the protest should be denied for all entries with regard to style numbers 5025208, 4026300, 3021800, 5026800, 6220600 and 80038. See also, HQ 070173, dated December 27, 1982, wherein Customs ruled that the presumption of correctness attached to a Customs laboratory analysis was not overcome by conflicting results from independent laboratory analyses, even when the same method of testing was utilized by both Customs and the independent laboratories.

The remaining styles of garments were not tested by Customs. In HQ 951756, dated June 15, 1993, Customs held that a Customs laboratory analysis from one shipment may be used to determine the classification of garments from subsequent shipments and entries provided the subsequent shipments contain identical merchandise from the same supplier using the same piece goods.

In determining what constitutes "identical fabric" we stated in HQ 956258, dated August 4, 1994, that:

[A]t the responsible import specialist's discretion, the testing results for water resistancy may be applied to other shipments of identical merchandise. In this context, "identical merchandise" means same garments from same supplier made from same fabric(s). A difference in size(s) or minor differences in construction should not prevent garments from being "identical merchandise". Also, in this context, "same supplier" means the same producer of the fabric (which may not be the same entity producing the garments from that fabric). We do not believe that requiring the "same supplier" is overly strict because differences in manufacturing technique and equipment may result in very different products.

In that decision, we also stated that it would be unreasonable to reject a swatch solely because it was not produced at the same time as the original fabric. We noted that even samples taken from the same roll of fabric may have different test results. The rejection of swatches supplied after importation should be based on a difference in the physical characteristics between the fabric(s) comprising the subject garments and the submitted swatch(es). The difference should be "articulateable" -- e.g., different materials, weight, yarn count, yarn number, etc.

In the supplemental letter of March 30, 1998, counsel admits that the garments are similar in design and construction. Additionally, he states that the fabric for styles 4026300, 8026300, 6021400 and the print fabric for style 5025208 were produced by Go Woo Trading Co., Ltd. The fabric for style 3021800 and the solid fabric for style 5025208 were produced by Namhung Co., Ltd. Counsel contends that the protest should be "approved on the styles which were manufactured from fabric which was not produced by the manufacturer of the fabric which was tested."

None of the swatches for styles 5025208, 4026300, 3021800, 5026800, 6220600 and 80038 passed the water resistance test set forth in Additional U.S. Note 2, Chapter 62, HTSUSA. Moreover, the record shows that the importer advised a Customs import specialist that styles 3025200, 3023500, 5025200, 5023500, 6025200, 6023500 were the "same" as style 5025208, and that styles 3220600, 3225622 were the "same" as style 5220600.

We provided counsel with an opportunity to submit evidence to rebut this statement, such as purchase orders, invoices, etc., and/or to show how the untested styles were different. No information of this nature was received. Moreover, although counsel provided the name of the fabric supplier of styles 4026300, 8026300, 6021400, 5025208, and 3021800, no documentation substantiating this was offered. Furthermore, the fabric supplier of the other eleven styles of garments was not mentioned, and the protestant did not submit evidence linking the fabric supplier of the styles which were tested to the supplier of fabric for the styles which were not tested. Therefore, based on the protestant's statement, we find that the garments were "the same" as that term is defined in HQ 956258.

Accordingly, the protest should be denied with regard to garment styles 3025200, 3023500, 5025200, 5023500, 6025200, 6023500, 3220600, 3225622, 5025208, 4026300, 3021800, 5026800, 6220600, and 80038.

The protest should be granted for styles 8026300 and 6021400 as those garments were not tested and there is no evidence that they were "the same" as a garment which failed the water resistance test.


Based on the foregoing, the protest should be denied with regard to garment styles 3025200, 3023500, 5025200, 5023500, 6025200, 6023500, 3220600, 3225622, 5025208, 4026300, 3021800, 5026800, 6220600, and 80038.

The protest should be granted for styles 8026300 and 6021400.

In accordance with section 3A(11)(b) of Customs Directive Number 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be attached to the Customs Form 19, Notice of Action, and furnished 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 (on that date) 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 to the public via the Diskette Subscription Service, Freedom of Information Act, and other public access channels.


John Durant, Director
Commercial Rulings Division

Previous Ruling Next Ruling

See also: