CLA-2 CO:R:C:T 955864 CC
Regional Commissioner of Customs
c/o Protest and Control Section
6 World Trade Center
Room 761
New York, NY 10048-0945
RE: Decision on Application for Further Review of Protest No.
1001-3-107544; woven fabric
Dear Sir:
This is a decision on application for further review of a
protest timely filed by Singer & Singh, on behalf of American
Lintex Corp., against the classification of certain woven fabric
from Pakistan.
FACTS:
The merchandise at issue is woven fabric in the piece. It
was entered in chief weight of cotton. After entry, a sample from
the shipment was sent to a Customs laboratory where it tested in
chief weight of polyester. Thereafter a notice of redelivery was
sent to the protestant. The protestant seeks redress by requesting
that the notice of redelivery issued for this shipment be cancelled
and that Customs rule that the fabric has a composition in which
cotton predominates by weight over polyester. The results of two
outside laboratory analyses have been submitted by the protestant
in support of its position.
According to the textile analyst who performed the testing
for Customs, the woven fabric sample was analyzed using method
AATCC 20A. The initial Customs laboratory report was based on the
two analyses from different parts of the sample which were
averaged. The two initial test results were the following:
Test 1: Polyester...50.48% Cotton...49.52%
Test 2: Polyester...50.50% Cotton...49.50%
The average of the two tests were reported as polyester having 50.5
percent and cotton having 49.5 percent.
A third confirming test was run on the fabric approximately
five months after the original analyses. The third test showed
that the fabric contained 51.64 percent of polyester fibers and
48.36 percent of cotton fibers.
The laboratory analyses submitted by the protestant indicate
that both of the tests employed the AATCC 20A method of analysis.
The test results from the independent laboratories were the
following:
Vartest Laboratories Inc.
Polyester...49.69% Cotton...50.31%
Inchcape Testing Services
Polyester...48.2% Cotton...51.8%
Customs has classified the subject merchandise under
subheading 5513.41.00, HTSUSA, which provides for woven fabrics of
synthetic staple fibers, containing less than 85 percent by weight
of such fibers, mixed mainly or solely with cotton, of a weight not
exceeding 170 g/m}: printed: of polyester staple fibers, plain
weave. The protestant claims that this merchandise is classifiable
under subheading 5210.21.60, HTSUSA, which provides for woven
fabrics of cotton, containing less than 85 percent by weight of
cotton, mixed mainly or solely with man-made fibers, weighing not
more than 200 g/m}: bleached: plain weave: of numbers 43 to 68.
ISSUE:
Whether the subject merchandise is in chief weight of cotton
or in chief weight of polyester?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff
Schedule of the United States Annotated (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.
Section XI, HTSUSA, covers textiles and textile articles.
Note 2(A) to Section XI provides that goods classifiable in
chapters 50 to 55 and of a mixture of two or more textile materials
are to be classified as if consisting wholly of that one textile
material which predominates by weight over each other single
textile material.
Customs has ruled that when determining which fiber
predominates by weight in blended fabrics, the merchandise may, in
the discretion of the classifying officer, be submitted to a
Customs laboratory for analysis and will be classified in
accordance with the results of that analysis. Headquarters Ruling
Letter (HRL) 087845 of December 20, 1990 and HRL 082863 of October
3, 1988. In addition, we found in HRL 082863 that the weights of
the component fibers will be determined as they exist in the goods
as imported, with no tolerance factor being allowed.
The protestant claims that a single Customs laboratory
analysis, using an undisclosed method, should not determine chief
weight for the subject merchandise. In addition, there exist two
independent laboratory reports, the protestant claims, that
constitute strong evidence to contradict the results of the Customs
laboratory analysis. The protestant argues, consequently, that the
subject merchandise is in chief weight of cotton and the protest
should be allowed.
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.
Consequently, the laboratory analyses performed by the Customs
laboratory on the subject merchandise are presumptively correct.
In order to rebut this presumption, the protestant must show the
analyses were erroneous. In Consolidated Cork
Corp. v. United States, 54 Cust. Ct. 83, C.D. 2512 (1965), the
court observed the following:
These cases indicate that the 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.
Both Customs and the independent laboratories used test method
AATCC 20A, a quantitative fiber analysis recognized by the
Government, commercial laboratories and the trade. Therefore, the
protestant cannot dispute the methods used by Customs to analyze
the subject fabric. Concerning sample size, the Customs laboratory
performed three tests. In addition, all of the tests were
consistent, showing that the fabric was in chief weight of
polyester. Finally, the results obtained by the Customs laboratory
have only a slight variance; the percentage of fabric that tested
polyester in the three analyses was 50.48, 50.50, and 51.64.
Based on the foregoing, we find that the protestant has not
rebutted the presumption of correctness attached to the Customs
laboratory analyses. Moreover, the testing done by the independent
laboratories raises certain questions. We have no evidence
concerning the number of tests and the size of the sample used by
the protestant's outside laboratories. In addition, one of the
independent laboratories cites a result based on a recalculated
percentage based on moisture gain. We have no evidence if such a
recalculation is valid for such an analysis.
Finally we have ruled previously 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. See HRL 070173, dated
December 27, 1982, in which Customs and the independent laboratory
both used test method AATCC 20A.
HOLDING:
Statistical Note 1(c) to Chapter 55, HTSUSA, states that the
term "printcloth" means plain weave fabrics, weighing not more than
170 grams per square meter, of average yarn numbers 43-68,
containing more than 33 singles yarns per square centimeter and
not containing multiple (folded) or cabled yarns, of square
construction, whether or not napped, of the following types:
(i) fabrics, not combed; and (ii) other fabrics, measuring less
than 168 cm in width. The subject merchandise has a width greater
than 168 centimeters.
Consequently, if the subject merchandise is combed, it is
classified under subheading 5513.41.0040, HTSUSA, which provides
for woven fabrics of synthetic staple fibers, containing less than
85 percent by weight of such fibers, mixed mainly or solely with
cotton, of a weight not exceeding 170 g/m}: printed: of polyester
staple fibers, plain weave, sheeting. The rate of duty would be
17 percent ad valorem, and the textile category would be 613.
If the subject merchandise is not combed, it is classified
under subheading 5513.41.0060, HTSUSA, which provides for woven
fabrics of synthetic staple fibers, containing less than 85 percent
by weight of such fibers, mixed mainly or solely with cotton, of
a weight not exceeding 170 g/m}: printed: of polyester staple
fibers, plain weave, printcloth. The rate of duty would be 17
percent ad valorem, and the textile category would be 615.
The protest should be denied in full.
In accordance with Section 3A(11)(b) of Customs Directive 099
3550-065, dated August 4, 1993, Subject: Revised Protest Directive,
this decision should be mailed by our 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 Rulings Module in ACS and the public via the Diskette
Subscription Service, Lexis, Freedom of Information Act and other
public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division