OT:RR:CTF:FTM H310227 PJG
Center Director
Apparel, Footwear and Textiles Center, Team 054
33 New Montgomery Street, 16th Floor
San Francisco, California 94105
Attn: Bryan Harrison, Import Specialist
RE: Application for Further Review of Protest No. 1703-2019-100673; Tariff classification of industrial polyester yarn
Dear Center Director:
This is in reference to the Application for Further Review (“AFR”) of
Protest No. 1703-2019-100673, timely filed on July 9, 2019, by International Forwarders, Inc. on behalf of Fenner Dunlop Americas, LLC (“Fenner Dunlop” or “Protestant”). The AFR concerns the tariff classification of industrial polyester yarn under the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
The Protestant describes the product as an industrial polyester, high tenacity, adhesive activated yarn with 1,110 DTEX/192F G1012MW1 AA Grade. They state that the yarn is multiple/folded.
The decision protested is the tariff classification of the industrial polyester yarn, which was entered on February 17, 2018, and liquidated on January 18, 2019. U.S Customs and Border Protection (“CBP”) liquidated the entries for these products as entered under heading 5402, HTSUS, and specifically in subheading 5402.20.30, HTSUS, which provides for “Synthetic filament yarn (other than sewing thread), not put up for retail sale, including synthetic monofilament of less than 67 decitex: High tenacity yarn of polyesters, whether or not textured: Single yarn.”
Protestant claims that the industrial polyester yarn is multiple/folded and, therefore, should be classified under subheading 5402.20.60, HTSUS, which provides for “Synthetic filament yarn (other than sewing thread), not put up for retail sale, including synthetic monofilament of less than 67 decitex: High tenacity yarn of polyesters, whether or not textured: Multiple (folded) or cabled.”
The CBP Laboratories and Scientific Services Directorate (“CBP laboratory”) analyzed a sample of the merchandise and determined that the sample is a “multifilament yarn made wholly of polyester. The yarn is a single yarn and untwisted. The yarn has a tenacity of 75.7 cN/tex and a decitex of 1131. As received, the sample weighs 10.4 kilograms including support.”
ISSUE:
Whether the subject industrial polyester yarn is classified in subheading 5402.20.30, HTSUS, which provides for “Synthetic filament yarn (other than sewing thread), not put up for retail sale, including synthetic monofilament of less than 67 decitex: High tenacity yarn of polyesters, whether or not textured: Single yarn” or in subheading 5402.20.60, HTSUS, which provides for “Synthetic filament yarn (other than sewing thread), not put up for retail sale, including synthetic monofilament of less than 67 decitex: High tenacity yarn of polyesters, whether or not textured: Multiple (folded) or cabled.”
LAW AND ANALYSIS:
Initially, we note that this matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed within 180 days of liquidation. See 19 U.S.C.
§ 1514(c)(3).
Protestant alleges that Further Review of Protest No. 1703-2019-100673 should be accorded pursuant to 19 C.F.R. § 174.24(a) because the decision against which the protest was filed is alleged to be inconsistent with a ruling of the Commissioner of CBP or his designee, or with a decision made by CBP with respect to the same or substantially similar merchandise. We find that Further Review of Protest No. 1703-2019-100673 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a).
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI”). GRI 1 provides that the classification of goods 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 GRIs may then be applied.
The 2018 HTSUS provisions under consideration are as follows:
5402 Synthetic filament yarn (other than sewing thread), not put up for retail sale, including synthetic monofilament of less than 67 decitex:
* * *
5402.20 High tenacity yarn of polyesters, whether or not textured:
5402.20.30 Single yarn
* * *
5402.20.60 Multiple (folded) or cabled
The Protestant cited two New York Ruling Letters (“NY”) as its basis for AFR under 19 C.F.R. § 174.24(a), specifically, NY N301467, dated November 20, 2018, and NY N291814, dated December 5, 2017. The merchandise in NY N301467 and NY N291814 was classified under subheading 5402.20.6000, HTSUS. However, the Protestant does not explain how the merchandise in those two rulings is substantially similar to the subject merchandise in the instant protest. We note that NY N301467 is silent as to whether that yarn is a “single,” “multiple (folded)” or “cabled” yarn, and NY N291814 specifically describes that yarn as “cabled” and “twisted,” indicating it is a different type of yarn for classification purposes from the present case.
A sample of the yarn was analyzed by the CBP laboratory, which determined that the sample is a single yarn. The burden of proof is on the importer that the CBP laboratory report is invalid. See Headquarters Ruling Letter (“HQ”) 950794 (March 25, 1992). This presumption of correctness for CBP laboratory results is also reflected in Exxon Corp v. United States, 462 F.Supp. 381, 81 Cust. Ct. 87, C.D. 4772 (1978) (quoting Consolidated Cork Corp. v. United States, 54 Cust. Ct. 83, C.D. 2512 (1965)) (citations omitted), which stated the following:
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. However, this presumption may be rebutted by showing that such methods or results are erroneous. Furthermore, the presumption does not have evidentiary value and may not be weighed against relevant and material proof offered by the plaintiffs. If a prima facie case is made out, the presumption is destroyed and the Government has the burden of going forward with the evidence.
We note that the Protestant in this case has not submitted any evidence to rebut the CBP laboratory’s presumption of correctness. The CBP laboratory determined that the subject merchandise is a “multifilament yarn made wholly of polyester. The yarn is a single yarn and untwisted.” Accordingly, the subject merchandise was correctly classified by CBP in subheading 5402.20.30, HTSUS, which provides for “Synthetic filament yarn (other than sewing thread), not put up for retail sale, including synthetic monofilament of less than 67 decitex: High tenacity yarn of polyesters, whether or not textured: Single yarn.”
HOLDING:
The industrial polyester yarn is classified under heading 5402, HTSUS, and specifically, in 5402.20.30, HTSUS, which provides for “Synthetic filament yarn (other than sewing thread), not put up for retail sale, including synthetic monofilament of less than 67 decitex: High tenacity yarn of polyesters, whether or not textured: Single yarn.” The 2018 column one, general rate of duty is 8.8 percent ad valorem. Duty rates are provided for convenience and are subject to change.
You are instructed to DENY the protest.
In accordance with sections IV and VI of the CBP Protest/Petition Processing Handbook, you are to mail this decision, together with the CBP Form 19, to the Protestant no later than 60 days from the date of this letter. Any re-liquidation 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 Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP Home Page at http://www.cbp.gov by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
For Craig T. Clark, Director
Commercial and Trade Facilitation Division