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HQ 963511




November 19, 2001

CLA-2 RR:CR:TE 963511 RH

CATEGORY: CLASSIFICATION

TARIFF NO.: 6202.93.5011

Area Port Director
U.S. Customs Service
6747 Engle Road
Middleburg Heights, OH 44130

RE: Protest number 4103-99-100041; Water Resistant Garments; Additional U.S. Note 2, Chapter 62; Presumption of Correctness; Visible to the Naked Eye

Dear Port Director:

The purpose of this correspondence is to address the Application for Further Review of Protest (AFR) number 4103-99-100041, which you forwarded to our office for review.

Expeditors Tradewin, LLC, timely filed the AFR on behalf of Brandon Thomas, Ltd., against Customs liquidation of three entries of ladies nylon-polyester anoraks under subheading 6202.93.5011 of the Harmonized Tariff Schedule of the United States (HTSUS). The protestant contends that the merchandise is classifiable under subheading 6210.50.5020, HTSUS.

FACTS:

The garments under consideration are women’s anoraks composed of 52 percent nylon and 48 percent polyester. The fabric on the outer shell of the garments has an application of polyurethane on the inner surface. The anoraks are manufactured by Philippine Leather Made Apparel, Inc., in the Philippines.

The protestant entered the merchandise in July 1998, as stated above. On August 17, 1998, Customs issued a Request for Information (CF 28) to the protestant to submit a sample garment for testing.

After a Customs laboratory examined the sample and determined that it was not water resistant, Customs issued a Notice of Action (CF 29) advising the protestant that the merchandise would be classified under subheading 6202.93.5011, HTSUS.

ISSUE:

What is the proper classification of the subject merchandise?

LAW AND ANALYSIS:

Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRIs will be applied.

Heading 6210, HTSUS, provides for garments made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907. Heading 5903, HTSUS, provides for textile fabrics impregnated, coated, covered, or laminated with plastics, other than tire cord fabrics. Note 2 to Chapter 59, HTSUS, states that heading 5903 applies to:

(a) Textile fabrics, impregnated, coated, covered or laminated with plastics, whatever the weight per square meter and whatever the nature of the plastic material (compact or cellular), other than:

(1) Fabrics in which the impregnation, coating or covering cannot be seen with the naked eye (usually chapters 50 to 55, 58 or 60); for the purpose of this provision, no account should be taken of any resulting change of color;

As set forth above, the sole criterion upon which Customs is to determine whether fabric is coated for purposes of classification under heading 5903, HTSUS, is clear and unambiguous: fabric is classifiable under heading 5903 if the plastic coating is visible to the naked eye. This office has established criterion by which Customs will deem coating visible to the naked eye. In Headquarters Ruling Letter (HQ) 083127, dated November 8, 1989, and HQ 087668, dated January 9, 1991, this office noted that where coating served to "blur" or "obscure" a fabric's underlying weave, the fabric was deemed visibly coated for purposes of classification within heading 5903, HTSUS.

In this case, both the Port Import Specialist and the National Import Specialist for this commodity examined the sample garment and determined that the polyurethane coating was not visible to the naked eye. They found that the only perceptible difference between the face and back of the outer shell fabric was a slight difference in color, for which no account should be taken under Note 2(a)(1), Chapter 59, HTSUS.

Alternatively, the protestant argues that the garments are classifiable under subheading 6202.93.4500, HTSUS, as water-resistant. In support of this claim, the protestant refers to an independent laboratory test performed by Intertek Testing Services on three samples of garments, allegedly the same as the sample tested by Customs.

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

[T]he term 'water resistant' means that garments classifiable in those subheadings must have a water resistance (see ASTM designations D 360081 and D 378179) 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 351985. This water resistance must be the result of a rubber or plastics application to the outer shell, lining, or inner lining.

Customs laboratory report number 3-1998-30677, dated October 2, 1998, reads in relevant part:

The sample, ladies’ red jacket, has a quilted woven outer shell fabric and a black woven lining. The outer shell fabric has an application of a plastic material on its inner surface. No plastics or rubber material was detected on the woven lining. This jacket does not meet the water resistance requirements specified in HTS Chapter 62, additional US note 2.

The protestant argues that because the Customs laboratory report states that “the outer shell fabric has an application of a plastics material on its inner surface” that the merchandise is classifiable in subheading 6210.50.5020, HTSUS. However, Customs laboratory report does not state that the coating is “visible to the naked eye” but merely notes that a coating is present. This statement is consistent with the test requirements under Additional U.S. Note 2, Chapter 62, HTSUS, that the water resistance be the result of a rubber or plastics application to the outershell, lining or inner lining.

Additionally, the protestant argues that the disparity between Customs laboratory findings and the independent laboratory results suggests “the possibility of error in Customs’ testing methods.” However, the protestant has not submitted any evidence to show that Customs failed to properly follow the water resistance test method in Additional U.S. Note 2, Chapter 62, HTSUS.

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.

In 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), the Court held 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).

Even if we assume, arguendo, that the independent laboratory report rebuts the presumption of correctness of the Customs laboratory report, the protestant did not prove by a preponderance of the evidence that the methods used by Customs or the results obtained in its report 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 Intertek Testing Services were more reliable or accurate. Accordingly, we find that Customs classification of the three entries of garments was proper, and we deny the protestant’s request that Customs retest the merchandise.

HOLDING:

The protest should be DENIED. Customs correctly classified the merchandise as women’s anoraks under subheading 6202.93.5011, HTSUS.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs 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, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the 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 methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division

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