HQ 089428
May 19 1993
CLA-2 CO:R:C:T 089428 CMR
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.
-5-
(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.
-6-
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