CLA-2 OT:RR:CTF:TCM H089795 JRB
Customs Compliance Manager
P.O. Box 2686
High Point, North Carolina 27265
RE: Request for Reconsideration of New York Ruling Letter (NY) N050146 concerning the tariff classification of fabric used in upholstery
Dear Mr. Shah:
This letter is in response to your request for reconsideration, dated December 1, 2009, requesting that U.S. Customs and Border Protection (CBP) reconsider NY N050146, issued to you on November 23, 2009. In particular you request that we reconsider the classification of a fabric that you market as “Tea Time” which CBP classified in subheading 5512.19.0090, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for “[w]oven fabrics of synthetic staple fibers, containing 85 percent or more by weight of synthetic staple fibers: [c]ontaining 85 percent or more by weight of polyester staple fibers: [o]ther… [o]ther (220)…” We have reconsidered NY N050146 and find that it is correct for the reasons set forth below.
In your initial request to CBP, you stated that the “Tea Time” material had a fiber content of 64% staple polyester and 36% filament polyester. However, in NY N050146, CBP described the merchandise that is the subject of this reconsideration request as follows:
Laboratory analysis indicates that this woven fabric is composed of 100% staple polyester. It is composed of yarns of different colors and contains 128 single yarns per inch in the warp and 52 single yarns per inch in the filling. This item weighs 236.2 g/m2 and will be imported in 55 inch widths. Your correspondence indicates that this fabric will be used as upholstery.
CBP’s description of the material was based on CBP Laboratory analysis of the “Tea Time” fabric. CBP Laboratory Report NY20090304 provided that the “Tea Time” fabric “is composed wholly of 1-ply polyester staple yarns.”
Whether the Tea Time fabric is classified in heading 5512, Harmonized Tariff Schedule of the United States (HTSUS), as a woven fabric of synthetic staple fibers containing 85 percent or more by weight of synthetic staple fibers or in heading 5515, HTSUS, as other woven fabrics of synthetic staple fibers?
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that most goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The HTSUS headings under consideration are:
5512 Woven fabrics of synthetic staple fibers, containing 85 percent or more by weight of synthetic staple fibers:
5515 Other woven fabrics of synthetic staple fibers:
In your initial submission you indicated that the “Tea Time” material is made of 64% staple polyester and 36% filament polyester. However, after CBP Laboratory testing, CBP determined that the product is made of 100% staple polyester. Staple fibers are natural fibers or cut lengths from man-made filaments. See Headquarters Ruling Letter (HQ) 961084, dated July 27, 1998 for more detailed definitions of the term “staple”.
In your request for reconsideration you stated that you believe that CBP improperly classified this merchandise because you contend that CBP’s laboratory report is incorrect. "It is well settled that the methods of weighing, measuring, and testing merchandise used by [CBP] officers and the results obtained are presumed to be correct." Aluminum Company of America v. United States, 60 C.C.P.A. 148, 151, 477 F.2d 1396, 1398 (1973). Absent a conclusive showing that the testing method used by the CBP laboratory is in error, or that the CBP's laboratory results are erroneous, there is a presumption that the results are correct. See Exxon Corp. v. United States, 462 F. Supp. 378, 81 Cust. Ct. 87, C.D. 4772 (1978).
There are two means in which an importer may successfully overcome the presumption of correctness afforded a CBP laboratory report. The first way is to successfully prove that the testing methods chosen to test the subject material were improper. See Libas, Ltd. V. United States, 193 F.3d 1361 (Fed. Cir. 1999). A second method is to prove that the CBP laboratory incorrectly carried out the properly chosen scientific procedure. See American Sporting Goods v. United States, 259 F. Supp. 2d 1302, 1308-1309 (Ct. Int’l Trade 2003) where the court found that the importer successfully overcame the presumption of correctness when the importer raised questions on the precision of CBP’s tests; CBP was unable to point to any significant flaws in the importer’s test; and CBP’s laboratory reports’ results were within the statistical margin of error.
In this case you offer in support of your contention that CBP incorrectly classified the “Tea Time” fabric a statement from your Quality Department that none of your products are made with 100% staple yarn. This statement is insufficient to successfully overcome the presumption of correctness given to a CBP laboratory report because it does not offer sufficient information to call into question the results of the CBP laboratory report. You have not offered any laboratory report or other scientific evidence indicating that the initial CBP Laboratory Report is incorrect. In addition, we believe that the CBP Laboratory report is correct because the sample appears to have been brushed, which is a process that can break filament fibers, thereby discontinuing the length of the filament within each fiber. By definition such cut or broken synthetic fibers are staple fibers. See HQ 961084, dated July 27, 1998. Therefore, CBP’s laboratory analysis of the composition of the instant material maintains its presumption of correctness.
Since, the CBP laboratory report indicates that the material is made of 100% polyester staple fiber the appropriate heading is heading 5512, HTSUS.
The “Tea Time” fabric is correctly classified in heading 5512, HTSUS, more specifically is it classified in subheading 5512.19.0090, HTSUSA, which provides for “[w]oven fabrics of synthetic staple fibers, containing 85 percent or more by weight of synthetic staple fibers: [c]ontaining 85 percent or more by weight of polyester staple fibers: [o]ther… [o]ther (220)…”. The 2010 column one, general rate of duty, is 13.6% ad valorem.
Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.
Duty rates are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
EFFECT ON OTHER RULINGS:
NY N050146, dated November 23, 2009 is hereby affirmed.
Myles B. Harmon, Director
Commercial and Trade Facilitation Division