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HQ 089428


May 19 1993

CLA-2 CO:R:C:T 089428 CMR

CATEGORY: CLASSIFICATION

TARIFF NO: 5515.13.0510; 5515.22.0510

District Director of Customs
U.S. Customs Service
Northeast District
Suite 801
10 Causeway Street
Boston, Massachusetts 02222-1056

RE: Decision on application for further review of Protest 0401-90-001075 on the classification of navajo woven fabric

Dear Sir:

This is a decision on the application for further review of Protest 0401-90-001075, timely filed by Sullivan and Lynch, P.C., on behalf of its client, Susan Bristol Inc., against your decision on the classification of navajo woven fabric.

FACTS:

The merchandise at issue is navajo style woven fabric which was entered under subheading 5407.94.1000, HTSUSA, which provides for woven fabric of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404: other woven fabrics: printed: mixed mainly or solely with wool or fine animal hair: other. This classification was premised on the certification of the manufacturer, LANIFICIO AURORA, that the fabric was made up of the following materials:

30 percent wool,
45 percent polyester,
20 percent acrylic, and
5 percent other fibers.

The original classification was incorrect for several reasons, including significant differences in the various fiber percentages based on the Customs laboratory analysis of the fabric. Customs therefore reclassified the merchandise under subheading 5515.13.0510, HTSUSA, which provides for other woven -2-
fabrics of synthetic staple fibers: of polyester staple fibers: mixed mainly or solely with wool or fine animal hair: Containing 36 percent or more by weight of wool or fine animal hair. Customs liquidated the goods in that subheading thus causing a rate advance.

In a letter dated May 17, 1990, however, Sullivan & Lynch suggested that this classification was inappropriate since the fabric was of a tufted nature, which would place it under the scope of heading 5802, HTSUSA. The manufacturer's Fabric Specification Sheet and the Single Country Declaration signed by the importer state that the fabric is of a sateen weave. Since there is no other evidence in the file that this fabric has a tufted weave, this claim will be denied consideration under the present protest.

Customs conducted an analysis of the fabric in question to determine the exact fiber content. The Customs laboratory report on the sample of fabric disclosed the following results:

38 percent wool,
21 percent polyester,
21 percent acrylic,
14 percent cotton,
4 percent nylon, and
2 percent rayon.

In addition, the lab report stated that the fabric is napped, not combed, weighs 515.9 g/m2 and has been constructed with carded, spun yarns. Based on this information, you rate advanced the fabric to HTS subheading 5515.13.05. Supplemental Duty Bill 41286138 in the amount of $18,415.81 was issued accordingly.

On notification of the fiber component discrepancy, Susan Bristol Inc. contacted the manufacturer which stated that the fabric contains, 33.7 percent wool, a claim that would support classification under subheading 5515.13.10. By letter dated November 2, 1991, the seller advised the importer that this fabric involves 12 different colored yarns, that every yarn is not of the same fiber content, that it is a perfect average based on a full repeat, and that since most labs will take a random 10" x 10" swatch for testing, a discrepancy may be explained by the absence of some yarns from that portion of the test sample.

The importer also sought an independent analysis through Consumer Testing Laboratronics, which concluded that there were no cotton fibers in the fabric at issue. There was no mention of the percentage of wool fibers present, nor was a copy of this report provided with the protest. Due to the inconsistencies presented by the various lab reports, the importer requested that -3-

Customs retest the fabric. This retest (Chicago Lab No. 3-90- 10671, January 4, 1991) confirmed the results of the original test with respect to the wool fiber content (38 percent wool).

Our Chicago laboratory indicated that its reanalysis was conducted on a full repeat of the design of the fabric. It was noted that the percentage of cotton was lower in this instance (3 percent) with a corresponding increase in man-made fibers (59 percent). These changes were traced to the use of garnetted stock. Moreover, the Customs lab attested to the thoroughness of its procedure by chemically, as well as microscopically, verifying the presence of cotton in the original sample.

The fabric was entered under 5407.94.1000, HTSUSA. The importer now contends that the goods are properly classified under subheading 5515.13.10, HTSUSA, which provides for other woven fabrics of synthetic staple fibers, mixed mainly or solely with wool or fine animal hair, other; or, if the retest indicates that the wool content is in excess of 36 percent wool, 5515.99.00, HTSUSA, is proposed as an alternative. Subheading 5515.99.00, HTSUSA, provides for other woven fabrics of synthetic staple fibers: other woven fabrics: other.

ISSUE:

What is the correct fiber content of the fabric at issue and how does it affect the classification of this merchandise under the HTSUSA?

If the fabric is proven to contain 36 percent or more by weight of wool fibers, and thus classification is appropriate in Chapter 55, how is the fabric classified with respect to the other man-made fibers?

LAW AND ANALYSIS:

The central issue in this case is the exact fiber content of the fabric in question. Three sets of laboratory tests--two by Customs and one by an independent laboratory--were conducted on the sample provided by the importer. The results of these tests have been disclosed above.

Both Customs and the importer's evidence indicates that the fabric at issue is constructed of garnetted stock, which creates some variance in the fiber content of each yarn. In its November 2nd letter, the seller stated that every yarn is not the same fiber content and that discrepancies may be explained by the absence of some yarns from portions of the test sample. This point was underscored by the Customs lab reports which found a lesser percentage of cotton upon retest, with a corresponding increase in man-made fibers. The importer points out that the -4-
independent laboratory tests indicated an absence of cotton in the sample. Since a copy of this report was not provided however, these statements do not constitute persuasive evidence. Moreover, this report made no reference to the presence or absence of the wool content, the main fiber at issue in this protest. In light of these facts, Customs reanalysis, which confirms the wool content of this fabric as 38 percent by weight of wool, is considered dispositive.

As the Customs lab reports indicate the fabric is made of spun yarns and not continuous filament yarns, it is clear that classification in subheading 5407, HTSUSA, is inappropriate as Chapter 54 applies only to man-made filament yarns and woven fabrics thereof. Chapter 55, which applies to man-made staple fibers and woven fabrics thereof, is clearly the proper starting point.

As stated earlier, the port classified the fabric at issue in heading 5515.13.05, HTSUSA, which provides for other woven fabrics of synthetic staple fibers: of polyester staple fibers: mixed mainly or solely with wool or fine animal hair: containing 36 percent or more by weight of wool or fine animal hair. The importer seeks classification in subheading 5515.13.10, HTSUSA, which provides for other woven fabrics of synthetic staple fibers, of polyester staple fibers, mixed mainly or solely with wool or fine animal hair, other [i.e., containing less than 36 percent by weight of wool or fine animal hair]. In the alternative, classification is sought in subheading 5515.99.00, HTSUSA, which provides for other woven fabrics of synthetic staple fibers, other woven fabrics, other.

Classification must begin at the four digit heading level. All of the classifications under consideration are within the same four digit heading, 5515. Therefore, we move on to the six digit level. Thus we have 5515.13, other woven fabrics of synthetic staple fibers: of polyester staple fibers versus 5515.99, other woven fabrics of synthetic staple fibers, other woven fabrics, other.

Classification of fabrics which contain two or more textile materials is governed by Note 2 to Section XI which states, in relevant part:

(A) Goods classifiable in chapters 50 to 55 or in heading 5809 or 5902 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.

(B) For the purposes of the above rule (in relevant part):

(b) The choice of appropriate heading shall be affected by determining first the chapter and then the applicable heading within that chapter, disregarding any materials not classified in that chapter;

(c) When both chapters 54 and 55 are involved with any other chapter, chapters 54 and 55 are to be treated as a single chapter;

Applying Note 2(B)(c) to Section XI, we combine the artificial and synthetic fibers to determine that the fabric is classifiable as a man-made fabric and not a wool fabric even though wool as a single fiber predominates by weight. The fabric consists of 46 percent synthetic fibers and 2 percent artificial and therefore is classifiable as a fabric of synthetic staple fibers. Having determined that the fabric is classifiable as a fabric of synthetic fibers, applying Note 2(B)(b), we disregard all non-synthetic fibers and consider only the polyester, acrylic and nylon. Based upon the first Customs laboratory report, the polyester and acrylic are each 21 percent by weight of the fabric; the nylon is only 4 percent. Therefore, the fabric is classifiable as either of polyester or of acrylic as neither predominates by weight. Customs has taken the position that in such circumstances, we will apply General Rule of Interpretation 3(c) and classify the article according to the fiber which occurs last in numerical order of those which merit consideration. As of acrylic occurs last in numerical order, the fabric is classifiable in subheading 5515.22.0510, HTSUSA, as other woven fabric of synthetic staple fibers: of acrylic or modacrylic staple fibers: mixed mainly or solely with wool or fine animal hair: containing 36 percent or more by weight of wool, not combed, dutiable at 48.5 cents/kg plus 38 percent ad valorem, within textile category 410. However, if as indicated in the file, the second Customs laboratory report indicated a decrease in the cotton content with a corresponding increase in the polyester content, then the fabric is classifiable in subheading 5515.13.0510, as other woven fabric of synthetic staple fibers: of polyester staple fibers mixed mainly or solely with wool or fine animal hair: containing 36 percent or more by weight of wool, dutiable at 48.5 cents/kg plus 38 percent ad valorem, within textile category 410.

Classification of the fabric is therefore in either 5515.13.0510, HTSUSA, or 5515.22.0510, HTSUSA, depending on which Customs lab report one accepts. Both lab reports indicated 38 percent by weight of wool, thus protestant's claim for classification in 5515.13.10, HTSUSA, [i.e., containing less than 36 percent or more by weight of wool] must be rejected. Protestant's alternative claim 5515.99.00, HTSUSA, must also be rejected as the fabric is more specifically provided for in 5515.13.0510, HTSUSA, or 5515.22.0510, HTSUSA.

HOLDING:

As classification in either 5515.13.0510, HTSUSA, or 5515.22.0510, HTSUSA, incurs the same duty rate and the same quota category, the protest should be denied.

A copy of this decision should be attached to the Form 19 which is sent to the protestant.

Sincerely,

John Durant, Director
Commercial Rulings Division

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