CBP Defers to Agency's Lab Testing in Water Resistance Ruling

Faced with conflicting lab testing, CBP deferred to its own testing of water resistance in two types of men's jackets, the agency said in a further review of protest ruling (here). The undisclosed importer challenged CBP on the agency's test of sample goods in 2010 that found the jackets failed to show water resistance. CBP ruled that the company was unable to show CBP's testing was faulty in ruling HQ H194735.

Both styles were entered in a single entry in 2010 as water resistant jackets under subheading 6201.93.30, but were liquidated as "other" non-water resistant jackets under 6201.93.35. While the company claimed the jacket linings include either an application of polyurethane or Teflon, CBP's lab said samples of both jacket types failed the testing. The company used independent testing both before and after the import, it said. Both "Veritas and Intertek found that the subject merchandise was water resistant within the meaning of Additional U.S. Note 2 to Chapter 62," it said. Another company, Harmonized Tariff Services, also found samples to be water resistant, though only after an initial test found otherwise, said CBP in the ruling.

CBP's testing is presumed correct, unless a company can show that the agency's methodology for the testing was faulty, the agency said. While the importer claimed CBP "failed entirely to note" the presence of plastic coating on the lining, "CBP’s laboratory both tested for an application of plastic or rubber and noted its absence in its report," it said. "This lack of an application is, by itself, enough to disqualify the subject merchandise from classification as waterproof merchandise." CBP also followed the testing standards developed by the agency and industry groups, it said.

The company also noted that CBP's "result is the only instance of testing in this proceeding where the merchandise did not pass the water resistance test." The different findings are sufficient to prompt questions of CBP's results, the company said. "Conflicting results alone are not enough to establish the prima facie case required to rebut CBP’s presumption of correctness," the agency said. "None of the garments tested by Protestant were from the entry at issue" and one of the private labs initially confirmed the CBP's findings, it said.

Despite the company's claims, "the company "has neither shown CBP’s laboratory results are erroneous, nor proven that its methodology or testing procedures were flawed by a preponderance of the evidence," the agency said. "To the contrary, conflicting results of independent laboratories are insufficient to overcome this presumption of correctness where these results are based on pre-production samples and post-importation samples whose similarity to the imported merchandise was not proven." CBP ruled that it correctly liquidated the entry with a classification of 6201.93.35 and a 27.7% duty rate.