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HQ 951636


June 30, 1992

CLA-2 CO:R;C;T 951636 jlj

CATEGORY: CLASSIFICATION

TARIFF NO.: 6110.30.3040

Area Director of Customs
J. F. K. Airport
Building 178
Jamaica, New York 11430

RE: Decision on Application for Further Review of Protest No. 1001-0-001644; Classification of Cotton/Polyester Knitted Sweat Shirts; Heading 6110

Dear Sir:

This protest was filed against your decision in the liquidation of entry number 229-0264170 of May 22, 1989, covering certain cotton/polyester knitted men's sweat shirts imported from Turkey.

FACTS:

The merchandise was described on the initial invoice submitted as 50 percent cotton, 50 percent polyester knitted men's sweat shirts. The protestant later submitted an additional invoice and a letter stating that the sweat shirts were actually 52 percent cotton, 48 percent polyester.

United States Customs Laboratory Report Number 2-89-11658- 001 of June 2, 1989, stated that a sample of the merchandise had the following composition by weight of the shell fabric:

Polyester 52.9 percent
Cotton 47.1 percent

The merchandise was originally classified under the provision for sweat shirts in chief weight of cotton, in subheading 6110.20.2040, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), dutiable at the rate of 20.7 percent ad valorem. After the laboratory report was received, Customs reclassified the merchandise as sweat shirts in chief weight of polyester, in subheading 6110.30.3040, HTSUSA, dutiable at the rate of 34.2 percent ad valorem.

ISSUE:

What is the correct HTSUSA provision for the merchandise?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRIs), taken in order. GRI 1 provides that classification shall be according to the terms of the headings and any relative section or chapter notes.

Section XI, Subheading Note 2 (A), states as follows:

Products of Chapters 56 to 63 containing two or more textile materials are to be regarded as consisting wholly of the textile material which would be selected under Note 2 to this section for the classification of a product of Chapters 50 to 55 consisting of the same textile materials.

Section XI, Section Note 2 (A) states as follows:

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 the proper classification is subheading 6110.20.2040, HTSUSA, based on the second invoice stating that the chief weight of the shirts is cotton. The import specialist claims that the correct classification is subheading 6110.30.3040, HTSUSA, based on the Customs lab report stating that the fiber content is 52.9 percent polyester, 47.1 percert cotton.

The issue is a factual one. What evidence should be accepted as indicative of the component of chief weight?

In cases concerning a similar issue, i.e., the weight of the merchandise as a whole, the courts have held that the actual weight or quantity must be taken regardless of the weight or measure given in the invoices and regardless of any trade custom to the contrary. Gertzen & Co. v. United States, 12 Ct. Cust. Appls. 499, T. D. 40697 (1925); L. E. Coppersmith, Inc. a/c Howard & Slocum, Inc. v. United States, 58 Cust. Ct. 144, C. D. 2911 (1967), Murray Block, Temporary Administrator for Estate of Loius S. Fryer v. United States, 32 Cust. Ct. 131, C. D.1594 (1954), aff'd 42 CCPA 217, C. A. D. 596 (1955).

In view of the Customs lab report stating that a sample from the instant shipment was tested and that the actual component of chief weight was found to be polyester and that the protestant has furnished no substantive evidence in support of his claim that the goods were incorrectly invoiced as to their composition, the polyester must be held to be the component of chief weight.

HOLDING:

The instant merchandise is classified in subheading 6110.30.3040, HTSUSA. The protest should be denied in full. A copy of this decision should be sent to the protestant along with the CF 19, Notice of Action.
Sincerely,

John Durant, Director
Commercial Rulings Division

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