CLA-2 CO:R:C:T 951988 CC
Mamie Pollock
District Director of Customs
200 E. Bay Street
Charleston, SC 29402
RE: Decision on Application for Further Review of Protest No.
1601-92-100055; bed sheets
Dear Ms. Pollock:
This protest was filed against your notice of redelivery
involving an entry of bed sheets produced in Pakistan.
FACTS:
The merchandise at issue is woven bed sheets from Pakistan
that measure 66 inches by 115 inches. They are not napped and do
not contain any embroidery, lace, braid, edging, trimming, piping
or applique work. The sheets were invoiced as 55 percent
polyester and 45 percent cotton. A Customs Laboratory analysis
was performed on four samples from the shipment. The following
are the results from that analysis:
A B C D
Polyester 50.2% 49.8% 45.3% 49.4%
Cotton 49.8% 50.2% 54.7% 50.6%
Based on the Customs laboratory report, it was determined
that the sheets were classifiable under subheading 6302.31.2040
of the Harmonized Tariff Schedule of the United States Annotated
(HTSUSA), which provides for bed linen, table linen, toilet linen
and kitchen linen, other bed linen, of cotton, other, sheets, not
napped. In the absence of a textile category visa of 361, a
notice of redelivery was issued. The protestant claims that the
variation in the results of the laboratory analysis shows that
the Customs testing procedures were inaccurate. In addition, the
protestant argues that one of the samples tested in chief weight
of polyester. Consequently, the protestant claims that the
sheets are classifiable under subheading 6302.32.2040, HTSUSA,
which provides for bed linen, table linen, toilet linen and
kitchen linen, other bed linen, of man-made fibers, other,
sheets, not napped.
ISSUE:
Whether the merchandise at issue is classifiable as of
cotton or as of man-made fibers?
LAW AND ANALYSIS:
Classification of merchandise under the 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.
Subheading note 2(A), Section XI, HTSUSA, requires that
products of Chapters 56 to 63 which contain two or more textile
materials be regarded as consisting wholly of that textile
material which would be selected under Note 2 to Section XI.
Note 2(A) to Section XI provides that goods consisting of a
mixture of two or more textile materials are to be classified as
consisting wholly of the one textile material which predominates
by weight.
Customs has ruled that when determining which fiber
predominates by weight in blended fabrics, the merchandise may,
in the discretion of the classifying officer, be submitted to a
Customs laboratory for analysis and will be classified in
accordance with the results of that analysis. Headquarters
Ruling Letter (HRL) 087845 of December 20, 1990 and HRL 082863 of
October 3, 1988. In addition, we found in HRL 082863 that the
weights of the component fibers will be determined as they exist
in the goods as imported, with no tolerance factor being allowed.
Four samples were taken from the shipment for analysis at a
Customs laboratory. Three of the samples tested in chief weight
of cotton, but the fourth tested in chief weight of polyester.
Since no tolerance factor is allowed, we cannot ignore the
results of the fourth sample; we must conclude that some of the
sheets from the shipment were in chief weight of cotton and some
were in chief weight of polyester.
We have examined the laboratory report and contacted
representatives from the Customs Office of Laboratories and
Scientific Services who, after reviewing the data obtained in the
analysis, assured us that proper testing procedures were employed
in determining the fiber content for the submitted samples.
Also, 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. Exxon Corporation v. United
States, 81 Cust. Ct. 87, 91, C.D. 4772 (1978). Therefore, based
on the laboratory analysis, we must conclude that some of the
sheets from the shipment were in chief weight of cotton and some
were in chief weight of polyester. Not being able to ascertain
how many sheets were in chief weight of cotton and how many were
in chief weight of polyester, we must treat the sheets that were
entered as commingled goods.
General Note 5(a) to the HTSUSA states the following
concerning commingling of goods:
Whenever goods subject to different rates of duty are
so packed together or mingled that the quantity or
value of each class of goods cannot be readily
ascertained by customs officers (without physical
segregation of the shipment or the contents of any
entire package thereof), by one or more of the
following means:
(i) sampling,
(ii) verification of packing lists or other documents
filed at the time of entry, or
(iii) evidence showing performance of commercial
settlement tests generally accepted in the trade
and filed in such time and manner as may be
prescribed by regulations of the Secretary of the
Treasury,
the commingled goods shall be subject to the highest
rate of duty applicable to any part thereof unless the
consignee or his agent segregates the goods pursuant to
subparagraph (b) hereof.
The duty rate applicable to the sheets if in chief weight of
cotton, subheading 6302.31.2040, HTSUSA, is 7.6 percent ad
valorem. The duty rate applicable to the sheets if in chief
weight of polyester, subheading 6302.32.2040, HTSUSA, is 13
percent ad valorem. Consequently, in application of General Note
5 to the HTSUSA, the sheets at issue are classifiable as of man-
made fibers under subheading 6302.32.2040.
HOLDING:
The merchandise at issue is classified under subheading
6302.32.2040, HTSUSA, which provides for bed linen, table linen,
toilet linen and kitchen linen, other bed linen, of man-made
fibers, other, sheets, not napped. The rate of duty is 13
percent ad valorem, and the textile category is 666.
The protest should be allowed. No additional duties will be
collected over those assessed. A copy of this decision should be
attached to the Customs Form 19 and provided to the protestant as
part of the notice of action on the protest.
Sincerely,
John Durant, Director
Commercial Rulings Division