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HQ 963510




March 21, 2000

CLA-2 RR:CR:TE 963510 SS

CATEGORY: CLASSIFICATION

TARIFF NO.: 5407.61.9930

Port Director
United States Customs Service
P.O. Box 1490
St. Albans, Vermont 05478

RE: Protest No. 0201-99-150001; Classification of Woven Fabric; Yarns Measuring More Than 80 Decitex; Subheading 5407.61.9930, HTSUSA; Not 5407.61.9100, HTSUSA; Tariff Preference Level; Additional U.S. Note 4(a) to Section XI; Merchandise Processing Fee; 19 U.S.C. §58c

Dear Sir:

This is in response to the Application for Further Review of Protest Number 0201-99-150001, filed by Consoltex, Inc. (“Protestant”), contesting the classification of certain woven fabric under subheading 5407.61.9930 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), filed on September 29, 1999.

FACTS:

The merchandise under protest is 100% non-textured filament polyester plain woven fabric. The fabric is identified by the Protestant by product code number 401667. “Voile 60”” is the Protestant’s name for product code 401667. The invoices included in the entry documents indicate that the fabric is further described by a finish number “509-1 Voile Soft” and color codes “C32206” (pink), “C57383” (navy II), “C53234” (slate) and “C76402”(forest green). We also note that the fabric is dyed, non-flat and weighs not more than 170 g/m².

The Protestant alleges that this type of fabric was, in the past, consistently classified under heading 5407.61.9100, HTSUSA. However, pursuant to a CF-29 Notice of Action, dated May 7, 1998, Customs directed the Protestant to enter the fabric
under heading 5407.61.99, HTSUSA, paired with heading 9999.00.54, HTSUSA.

Entries of goods which qualify under additional U.S. Note 4(a) for the NAFTA preferential rate are required by Statistical Note 5 to Section XI, HTSUSA, to contain the correct 8-digit special statistical reporting number applicable to such goods which are set forth at the end of chapter 99, HTSUSA, along with the appropriate 10-digit classification subheading within Section XI.

Pursuant to the CF-29, Protestant entered thirty-three (33) cartons of the subject fabric on August 31, 1998, under subheading 5407.61.9930, HTSUSA. Classified under subheading 5407.61.9930, HTSUSA, the fabric did not qualify as originating goods of Canada under General Note 12(t) of the HTSUSA and was not entitled to the “special” or “free” rate of duty. However, the Protestant claimed entitlement to preferential tariff treatment pursuant to Annex 300-B of the North American Free Trade Agreement (“NAFTA”) and Additional U.S. Note 4 (a) to Section XI, HTSUSA. The Protestant submitted the required Certificate of Eligibility pursuant to 19 C.F.R. §12.132. Preferential tariff treatment was granted and the shipment was entered duty free. The duty rate assigned pursuant to Annex 300-B of the NAFTA and Additional U.S. Note 4(a) to Section XI, HTSUSA, is often referred to as “TPL” or “tariff preference level.” Pursuant to 19 U.S.C. 58c a merchandise processing fee of .21 percent equaling $92.41 was imposed.

The Protestant timely filed the instant electronic protest. The Protestant contends that the fabric at issue meets all the requirements of subheading 5407.61.9100, HTSUSA. The Protestant requests that the merchandise be classified under CA5407.61.9100, HTSUSA, and that the merchandise processing fee be refunded. If the fabric was classified under subheading 5407.61.9100, HTSUSA, it would qualify as an originating good of Canada under NAFTA and, pursuant to 19 U.S.C. 58c (b)(10)(B)(i), would not be subject to a merchandise processing fee.

ISSUE:

Whether the woven fabric is classifiable under subheading 5407.61.9100, HTSUSA, or under subheading 5407.61.9930, HTSUSA?

LAW AND ANALYSIS:

Classification of goods under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (“GRIs”). GRI 1 provides that classification shall be determined 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 GRI may then be applied. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, and any related subheading notes and, mutatis mutandis, to the GRIs. This matter is governed primarily by GRI 6, in that the choice in classification is between two subheadings. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI.

There is no disagreement as to the classification of the subject merchandise at the 6-digit level. Subheading 5407.61, HTSUSA, provides for, among other things, “[w]oven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404: Other woven fabrics, containing 85 percent or more by weight of polyester filaments: Containing 85 percent or more by weight of non-textured polyester filaments:.” The sole issue in this case is whether the merchandise is classified under subheading 5407.61.91, HTSUSA, or 5407.61.99, HTSUSA.

Subheading 5407.61.91, HTSUSA, covers woven fabric “[w]holly of polyester, of single yarns measuring not less than 75 decitex but not more than 80 decitex, having 24 filaments per yarn and with a twist of 900 or more turns per meter.” Subheading 5407.61.99, HTSUSA, covers other fabric. In other words, if the subject merchandise is found it be made of yarns measuring 80 decitex or less, it is classifiable under subheading 5407.61.91, HTSUSA, but if it is made of yarns measuring more than 80 decitex, it is classifiable under subheading 5407.61.99, HTSUSA. Protestant appears to argue that under its “interpretation” of subheading 5407.61.9100, HTSUSA, the fabric may be made of single yarns measuring more than 80 decitex.

A sample of fabric identified as product number 401667, finish number 509-1 and color number C32206 was submitted to the Customs Laboratory for examination. The laboratory report identifies the tested fabric as product 401667 however it also calls it “Lisette 1285.” The Protestant states that “Lisette 1285” is the name used by the customer to identify product 401667. The laboratory report states that the fabric has yarns measuring more than 80 decitex. Additionally, the laboratory report states that the number of filaments per warp yarn is 28 and the number of filaments per fill yarn is 26. The Protestant acknowledges that the fabric tested in the laboratory report is from a different entry than the entry under protest. However, Protestant concedes that the fabric which is the subject of the laboratory report has the same characteristics as far as yarn thickness, twist factor and weight as the fabric which is the subject of this protest. We note that the Protestant was offered an opportunity to submit samples from the subject entry to be tested but declined based on the fact that the fabric in the two entries share the same characteristics.

The Protestant does not allege that the laboratory test was improper. Furthermore, the Protestant does not allege that the fabric is made of yarns measuring 80 decitex or less. Protestant is simply asking Customs to read subheading 5407.61.9100, HTSUSA, as covering fabrics with yarns measuring more than 80 decitex. However, that is in direct contravention to the plain wording of the subheading. Subheading 5407.61.9100, HTSUSA, clearly requires that fabrics covered by the heading be made of yarns measuring no more than 80 decitex. Furthermore, subheading 5407.61.9100, HTSUSA, also requires that fabrics covered by the heading be made of yarns having 24 filaments per yarn. Based on the laboratory report which indicates the fabric is made of yarns measuring more than 80 decitex and having more than 24 filaments per yarn, the fabric cannot be classified under subheading 5407.61.9100, HTSUSA. Accordingly, subheading 5407.61.99, HTSUSA, which provides for other yarns is applicable. Based on the fact that the fabric is dyed, weighs not more than 170 g/m² and is non-flat, we find that the fabric is classified under subheading 5407.61.9930, HTSUSA.

The only evidence to the contrary is three technical sheets submitted by the Protestant. Each technical sheet identifies the product as “401667 Voile 60”” and finish as “509-1 Voile Soft.” Each technical sheet also contains a different “style” number. The Protestant states that it assigns a style number each time it changes suppliers and the different style numbers for product 401667 Voile 60” allows it to track the origin of the yarn utilized in weaving of the fabric. Protestant advises that the fabrics share the same characteristics as far as yarn thickness, twist factor and weight despite the different style numbers. All three technical sheets indicate that the yarn is between 76 and 78 decitex. However, it is Customs belief that the yarn information on the technical sheets contains measurements of the yarns prior to being made into the fabric. This is supported by the fact that the Protestant at no time alleges in the Protest that the fabric is made of yarns measuring 80 decitex or less.

It is well settled that the methods of testing and weighing merchandise used by customs officials are presumptively correct and that the burden is upon the importer to show how such methods or results obtained are erroneous. T.H. Gonzales v. United States, 40 Cust Ct. 9, CD 1949 (1957). In the present case, Protestant has not alleged that the testing methods or results are erroneous. The Protestant has offered no rebuttal to the presumption of correctness. The Protestant has offered no independent analysis. Furthermore, there has been no evidence presented to question the methodology of the Customs laboratory. Accordingly, we find that based on the laboratory report, the fabric is classifiable under heading 5407.61.9930, HTSUSA.

HOLDING:

The woven fabric is classified in subheading 5407.61.9930, HTSUSA, textile category 619, the provision for “[w]oven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404: Other woven fabrics, containing 85 percent or more by weight of polyester filaments: Other: Other: Dyed: Other.” The general column one duty rate was 16.2 percent ad valorem in 1998.

The protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division


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