CBP Finds Independent Testing of Pants Not Enough to Prove Agency Testing Error
Independent testing of imported women's capri pants was not sufficient to prove CBP was mistaken in its testing and classification of the pants, agency headquarters said in a March 30 ruling. The importer protested the classification decision of the Port of New York/New Jersey, pointing to the company's independent tests that showed different fiber contents than CBP's testing. CBP headquarters further reviewed the protest because it involved novel "questions of law or fact" that have not been ruled on by CBP or the courts, it said. Specifically, the protest "notes independent laboratory results conflict with those of CBP’s laboratory, questions the laboratory methodology with respect to the testing of linen and cotton, and contests that the CBP laboratory may have tested the wrong sample."
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The pants were entered in December of 2010 and CBP's laboratory tested the goods and found the pants to consist mostly of cotton and less than 40 percent of linen, it said. CBP liquidated the pants as subheading 6204.62.40 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 cotton: Other: Other: Other.” The importer protested, saying the pants were properly classified on entry as 6204.69.90 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 other textile materials: Other." Those classifications have 16.6 percent and 2.8 percent duty rates, respectively.
The importer challenged the results of CBP’s lab, citing the results of two independent laboratories, Consumer Testing Laboratories and Bureau Veritas, said CBP. Those tests found the pants to be made up of mostly linen, not cotton. The company also argued that a sample it sent to CBP in a post-entry amendment that was tested by the lab "was a pre-production sample not taken from the shipment at issue whose composition varied from the merchandise that was ultimately imported." After a meeting between the importer's lawyer and CBP officials in 2013, the company "submitted additional samples that had been purchased from Walmart, the importer’s sole customer for the subject merchandise." The agency found those new samples to be of similar composition as the previous tests and therefore the retesting did not affect its conclusion that the pants are mostly cotton, it said.
The company also questioned CBP's testing methodology, the agency said. The importer argued "that the testing methodology used by the CBP laboratory was flawed because it relied on cotton and linen factors alone, and failed to consider the diameter of the cotton and linen fibers at issue." But CBP's lab used the same methods as the independent labs and CBP analysis included consideration of the fiber diameters, the agency said. Additionally, based on the time difference between the independent lab tests, CBP notes there's some question as whether those tests were on samples from the same shipment, it said. Also, the "testing by Consumer Testing Laboratories was performed prior to the subject merchandise’s importation, and Bureau Veritas’ testing was performed well after it was imported," it said.
Because "CBP enjoys a statutory presumption of correctness," an importer "has the burden to prove by a preponderance of the evidence that a Customs decision was incorrect," said CBP. The outside laboratory reports "do not rebut CBP’s presumption of correctness," and the pants are correctly classified as 6204.62.40 with a 16.6 percent duty rate, said CBP.