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HQ 961016




September 9, 1998

CLA-2 RR:CR:TE 961016 RH

CATEGORY: CLASSIFICATION

TARIFF NO.: 5513.11.0060; 5513.21.0060

Port Director
U.S. Customs Service
200 East Bay Street
Room 121
Charleston, SC 29401

RE: Protest Number 1601-97-100124; subheading 5210.21.6060; subheading 5210.31.6060; subheading 5513.11.0060; subheading 5513.21.0060; printcloth; chief weight

Dear Sir:

On October 10, 1997, you forwarded Application for Further Review (AFR) of Protest number 1601-97-100124, filed by Sherry L. Singer, on behalf of American Lintex Corporation, to our office for review. The protest was timely filed on May 21, 1997. The protestant claims that the fabric was improperly classified as chief weight polyester.

Counsel claims that "a real question exists as to whether the fabric from the instant shipment was actually tested, and if it was, were standard laboratory requirements adhered to." Thus, the AFR meets the criteria for further review under 19 C.F.R.

We met with counsel for the importer on April 17, 1996, to discuss the issues in this case. At that time, she requested an opportunity to submit a request for documents under the Freedom of Information Act and to tender additional arguments in support of the protest. Counsel submitted additional arguments in a letter dated August 20, 1998.

FACTS:

On May 21, 1996, the importer entered cotton/polyester reactive dyed fabric and cotton/polyester bleached fabric into the United States from Pakistan. The protestant sought classification of the dyed fabric under subheading 5210.31.6060 of the Harmonized Tariff Schedule of the United State Annotated (HTSUSA), as cotton printcloth containing less than 85 percent by weight of cotton, mixed mainly or solely with man-made fibers. The protestant classified the bleached fabric under subheading 5210.21.6060, HTSUSA, as cotton printcloth containing less than 85 percent by weight of cotton, mixed mainly or solely with man-made fibers.

A Customs laboratory examined the fabrics and determined that they were chief weight polyester. Laboratory report number 4-96-11435-001 states that the composition of the dyed blended fabric is 53.9% polyester and 46.1% cotton. Laboratory report number 4-96-11437-001 reveals that the composition of the bleached blended fabric is 52.4% polyester and 47.6% cotton.

Customs liquidated the entry on February 28, 1997, under subheading 5513.11.0060, HTSUSA, polyester bleached printcloth, and under subheading 5513.21.0060, HTSUSA, dyed polyester printcloth.

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 their appropriate 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.

The protestant claims that a single Customs laboratory analysis should not determine chief weight for the subject merchandise. The protestant submitted two independent laboratory reports from Vartest Laboratories, Inc. The dyed (hunter green) fabric was 52.74 percent cotton and 47.26 percent polyester. The other report indicates that the bleached fabric was 52.96 percent cotton and 47.04 percent polyester.

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; Son & C United States v. Lozano, 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:

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.

Customs 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. Headquarters Ruling Letter (HQ) 070173, dated December 27, 1982.

In the instant case, 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. Customs also performed three tests on each sample all of which consistently showed that the fabric was in chief weight of polyester. We further note that there is no certainty the fabrics tested by the independent laboratories were identical to the fabrics submitted to our Customs laboratory.

Additionally, Counsel contends that the Customs laboratory reports have serious discrepancies on their face which cannot be considered mere typographical errors or "harmless" in nature. To begin with, counsel states that both of the Customs laboratory reports list the incorrect entry date of the subject shipment as June 4, 1996. The actual date of entry was May 23, 1996. Moreover, laboratory report 4-96-11435-001 (pertaining to the dyed fabric) indicates that the goods were classified under subheading 5210.21.6060 when the goods were, in fact, entered under subheading 5210.31.6060. That report also shows the entered value of the merchandise to be $83,795. which is crossed out and replaced with $226,197.

According to the port, part of the samples in question which were originally analyzed by the laboratory were resent to the laboratory after this protest was filed in order to confirm that the correct samples had been tested. The laboratory was able to confirm that the dyed sample matched the report, but the bleached sample had already been destroyed. The errors on the laboratory reports mentioned by counsel were mistranscribed from the entry to the report. However, each report properly identified the entry number, importer, maker and description of the merchandise. Accordingly, we find that the discrepancies were harmless typographical errors.

We note that the submission submitted by counsel also contains several typographical errors. For example, counsel lists the incorrect entry date on the protest (CF 19) and in her letter of July 24, 1997, refers to "printed" fabric, although the entry in question encompasses only dyed and bleached fabric.

In addition, it appears that the instant protest is similar to a protest filed by the same attorney on October 29, 1993, on behalf of the same importer. That protest was subsequently denied on June 10, 1994, by HQ 955864.

In counsel's supplemental letter dated August 20, 1998, she reiterates her previous arguments and raises the question whether the laboratory results properly reflect the condition of the fabric at the time of arrival in the United States. She states that the fabric not only made an ocean voyage that lasted six weeks, but after its arrival in the U.S. was transported from Charleston to Savannah. She also argues that the methodology used by the Customs Service takes "absolutely no account of the environmental factors (such as moisture and heat) that may have affected the fiber account measurement herein."

In response, we note that the EN to Section XI, Part IV contain the standard atmospheres for conditioning and testing of textiles. Note IV (D) to Section XI reads:

(D) Conditioning.

Before a textile is tested to determine a physical or mechanical property, it shall be conditioned by placing it in the standard temperate atmosphere for testing, in such a way that the air flows freely through the textile, and keeping it there for the time required to bring it into equilibrium with the atmosphere.

Unless otherwise specified in the method of test, the textile should be considered to be in equilibrium when successive weighs, at intervals of 2 hours, of the textile freely exposed to the moving air show no progressive change in weight greater than 0.25%.

Additionally, our office contacted the Customs laboratory that analyzed the fabric at issue. We were advised that the fabric was properly conditioned and tested in accordance with the standards set forth in the HTSUSA, and that the environmental factors such as moisture and heat that the fabrics were subjected to prior to testing were irrelevant and did not affect the test results in question.

Based on the foregoing, we find that the protestant has not rebutted the presumption of correctness attached to the Customs laboratory analyses.

HOLDING:

The printcloth under consideration is classifiable under subheading 5513.11.0060, of the 1996 HTSUSA, as polyester bleached printcloth, dutiable at the general column one rate at 16.6 percent ad valorem. The textile category is 615. The dyed printcloth is classifiable under subheading 5513.21.0060, HTSUSA, and is dutiable at the applicable rate at 16.6 percent ad valorem. The textile category is 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

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