CLA-2 RR:CR:TE 961016 RH
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.
174.24(b).
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.
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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.
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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.
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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.
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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