CLA-2 CO:R:C:T 951988 CC

Mamie Pollock
District Director of Customs
200 E. Bay Street
Charleston, SC 29402

RE: Decision on Application for Further Review of Protest No. 1601-92-100055; bed sheets

Dear Ms. Pollock:

This protest was filed against your notice of redelivery involving an entry of bed sheets produced in Pakistan.

FACTS:

The merchandise at issue is woven bed sheets from Pakistan that measure 66 inches by 115 inches. They are not napped and do not contain any embroidery, lace, braid, edging, trimming, piping or applique work. The sheets were invoiced as 55 percent polyester and 45 percent cotton. A Customs Laboratory analysis was performed on four samples from the shipment. The following are the results from that analysis:

A B C D

Polyester 50.2% 49.8% 45.3% 49.4% Cotton 49.8% 50.2% 54.7% 50.6%

Based on the Customs laboratory report, it was determined that the sheets were classifiable under subheading 6302.31.2040 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for bed linen, table linen, toilet linen and kitchen linen, other bed linen, of cotton, other, sheets, not napped. In the absence of a textile category visa of 361, a notice of redelivery was issued. The protestant claims that the variation in the results of the laboratory analysis shows that the Customs testing procedures were inaccurate. In addition, the protestant argues that one of the samples tested in chief weight of polyester. Consequently, the protestant claims that the sheets are classifiable under subheading 6302.32.2040, HTSUSA, which provides for bed linen, table linen, toilet linen and kitchen linen, other bed linen, of man-made fibers, other, sheets, not napped.

ISSUE:

Whether the merchandise at issue is classifiable as of cotton or as of man-made fibers?

LAW AND ANALYSIS:

Classification of merchandise under the 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.

Subheading note 2(A), Section XI, HTSUSA, requires that products of Chapters 56 to 63 which contain two or more textile materials be regarded as consisting wholly of that textile material which would be selected under Note 2 to Section XI. Note 2(A) to Section XI provides that goods consisting of a mixture of two or more textile materials are to be classified as consisting wholly of the one textile material which predominates by weight.

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.

Four samples were taken from the shipment for analysis at a Customs laboratory. Three of the samples tested in chief weight of cotton, but the fourth tested in chief weight of polyester. Since no tolerance factor is allowed, we cannot ignore the results of the fourth sample; we must conclude that some of the sheets from the shipment were in chief weight of cotton and some were in chief weight of polyester.

We have examined the laboratory report and contacted representatives from the Customs Office of Laboratories and Scientific Services who, after reviewing the data obtained in the analysis, assured us that proper testing procedures were employed in determining the fiber content for the submitted samples. Also, 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. Exxon Corporation v. United States, 81 Cust. Ct. 87, 91, C.D. 4772 (1978). Therefore, based on the laboratory analysis, we must conclude that some of the sheets from the shipment were in chief weight of cotton and some were in chief weight of polyester. Not being able to ascertain how many sheets were in chief weight of cotton and how many were in chief weight of polyester, we must treat the sheets that were entered as commingled goods.

General Note 5(a) to the HTSUSA states the following concerning commingling of goods:

Whenever goods subject to different rates of duty are so packed together or mingled that the quantity or value of each class of goods cannot be readily ascertained by customs officers (without physical segregation of the shipment or the contents of any entire package thereof), by one or more of the following means:

(i) sampling,

(ii) verification of packing lists or other documents filed at the time of entry, or

(iii) evidence showing performance of commercial settlement tests generally accepted in the trade and filed in such time and manner as may be prescribed by regulations of the Secretary of the Treasury,

the commingled goods shall be subject to the highest rate of duty applicable to any part thereof unless the consignee or his agent segregates the goods pursuant to subparagraph (b) hereof.

The duty rate applicable to the sheets if in chief weight of cotton, subheading 6302.31.2040, HTSUSA, is 7.6 percent ad valorem. The duty rate applicable to the sheets if in chief weight of polyester, subheading 6302.32.2040, HTSUSA, is 13 percent ad valorem. Consequently, in application of General Note 5 to the HTSUSA, the sheets at issue are classifiable as of man- made fibers under subheading 6302.32.2040.

HOLDING:

The merchandise at issue is classified under subheading 6302.32.2040, HTSUSA, which provides for bed linen, table linen, toilet linen and kitchen linen, other bed linen, of man-made fibers, other, sheets, not napped. The rate of duty is 13 percent ad valorem, and the textile category is 666.

The protest should be allowed. No additional duties will be collected over those assessed. A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.


Sincerely,

John Durant, Director
Commercial Rulings Division