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HQ 953769

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July 22, 1993

CLA-2 CO:R:C:T 953769 SK

CATEGORY: CLASSIFICATION

TARIFF NO.: 6110.90.0038

Tommy Lai
Hong Kong Economic & Trade Office
British Embassy
1150 18th Street, N.W., ste. 475
Washington, D.C. 20036

RE: Classification of two styles of ladies' knit silk and cotton sweaters; pullovers; subheading 6110.90.0038, HTSUSA; Exxon Corp. v. U.S., 462 F. Supp. 378, 81 Cust. Ct. 87, C.D. 4772 (1978); Customs lab reports are presumed correct absent conclusive evidence to the contrary.

Deat Mr. Lai:

This is in response to your letter of March 29, 1993, on behalf of Rayburn Inc., requesting a binding classification ruling for two styles of ladies' knit sweaters. A sample of one of the styles was submitted to this office for examination. It will be returned to you under separate cover.

FACTS:

Two styles of ladies' knit sweaters are the subject of this binding classification ruling, referenced style 700 and style 701. Only one style was submitted to this office for examination: style 701. Style 701 is a women's knit pullover sweater that has less than nine stitches per two centimeters on the outside of the fabric, measured in the horizontal direction. The sweater has a crew neck, long sleeves with rib knit cuffs and a pronounced rib knit waistband. A diamond-shaped argyle pattern, knitted
by intarsia, is present on the front left side of the sweater. The fiber content on the garment's label is 80 percent silk and 20 percent cotton.

In your submission to this office you state that three separate laboratory tests have been conducted in Hong Kong which determined the composition of the yarn used in the manufacture of the two styles of sweaters. You claim that the test results indicate that there is over 85 percent silk fiber in each sweater, therefore precluding the garments from being subject to quota restraint.

The Los Angeles Customs laboratory conducted fiber analysis tests on this merchandise and found both styles to contain only 61 percent silk and 39 percent cotton.

ISSUES:

Upon which of the laboratory results should classification be based?

What is the proper classification of these garments?

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.

The knit garments at issue are clearly designed as pullover sweaters, classifiable under heading 6110, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for, inter alia, knitted sweaters and pullovers. At the ten digit level, classification of these garments is based upon the amount of silk, by weight, that these garments contain. Accordingly, our first determination must be which of the two contradictory laboratory results which set forth the fiber content of these garments controls: the inquirer's lab results which state that the sweaters are comprised of over 85 percent silk and are therefore classifiable under subheading 6110.90.0032, HTSUSA, or the Customs laboratory report which states that the sweaters are made from 61 percent silk and therefore classifiable under subheading 6110.90.0038.

As set forth above, you state that three separate laboratory tests have been conducted in Hong Kong into the composition of the yarn of the two styles of sweaters. All three laboratory results indicated that the sweaters had a composition approximately equal to 85 percent silk and 15 percent cotton.

Customs laboratory in Los Angeles tested a fabric swatch taken from a sweater marked style 701. The sample consisted of a tan colored background with red and black diamond patterns along the front with a small red and black stripe around the collar, cuffs and waistband. The black yarn's composition was 80 percent silk and 20 percent cotton. The black yarn comprised only two percent of the entire weight of the shell portion of the sweater. The tan yarn had a composition of 61 percent silk and 39 percent cotton. The tan portion comprised 96 percent of the total weight of the shell portion of the garment. The red yarn had a composition of 56 percent silk and 44 percent cotton. The red portion comprised two percent of the total weight of the shell.

There is no reason to disregard Customs' laboratory results in the instant case. Absent a conclusive showing that the method for determining yarn composition is in error, or that Customs' laboratory results are erroneous, there is a presumption that the results obtained by a Customs laboratory are correct. See Exxon Corp. v. United States, 462 F. Supp. 378, 81 Cust. Ct. 87, C.D. 4772 (Ocotber 6, 1978). As no such evidence has been presented, the Customs laboratory results are deemed correct and conclusive on this matter.

We further note that laboratory results obtained from "accredited" foreign laboratories are not persuasive evidence which would serve to refute the correctness of Customs' laboratory results. Customs has previously dealt with this issue in a Customs Service telegram, referenced 02363, dated June 6, 1990, in which a claim that accredited Hong Kong laboratory testing services would be acceptable to U.S. Customs was rejected. The telegram stated:

You are advised that no agreement on this topic has been concluded between the governments of the U.S. and Hong Kong on this matter... (Any private sector agreements) cannot, repeat cannot,
mandate the acceptance by U.S. Customs of (Hong Kong laboratory) test data for purposes of chief weight, net weight, labelling, copyright infringements or any other requirement enforced by Customs for tariff or other purposes.

We rely on the Customs laboratory report provided for style 701. As it states that the fiber content of the garment is 61 percent silk and 39 percent cotton, the garment is classifiable under subheading 6110.90.0038, HTSUSA, as a ladies' knit sweater which is by weight less than 70 percent silk.

As neither you nor the Field National Import Specialist in Los Angeles distinguishes style 700 from 701 in terms of their fiber content, this office holds that the same classification shall apply to style 700.

HOLDING:

Style 700 and style 701 are both classifiable under subheading 6110.90.0038, HTSUSA, which provides for "sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted: of other textile materials... sweaters: women's or girls': other: of silk: other: other, dutiable at a rate of six percent ad valorem. The attendant textile quota category is 846.

The designated textile and apparel categories may be subdivided into parts. If so, the visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available we suggest you check, close to the time of shipment, the Status Report on Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service which is updated weekly and is available for inspection at the local Customs office.

Due to the nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact the local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director
Commercial Rulings
Division

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