United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 1994 HQ Rulings > HQ 0955821 - HQ 0955916 > HQ 0955864

Previous Ruling Next Ruling

HQ 955864

June 10, 1994

CLA-2 CO:R:C:T 955864 CC


TARIFF NO.: 5513.41.00

Regional Commissioner of Customs c/o Protest and Control Section
6 World Trade Center
Room 761
New York, NY 10048-0945

RE: Decision on Application for Further Review of Protest No. 1001-3-107544; woven fabric

Dear Sir:

This is a decision on application for further review of a protest timely filed by Singer & Singh, on behalf of American Lintex Corp., against the classification of certain woven fabric from Pakistan.


The merchandise at issue is woven fabric in the piece. It was entered in chief weight of cotton. After entry, a sample from the shipment was sent to a Customs laboratory where it tested in chief weight of polyester. Thereafter a notice of redelivery was sent to the protestant. The protestant seeks redress by requesting that the notice of redelivery issued for this shipment be cancelled and that Customs rule that the fabric has a composition in which cotton predominates by weight over polyester. The results of two outside laboratory analyses have been submitted by the protestant in support of its position.

According to the textile analyst who performed the testing for Customs, the woven fabric sample was analyzed using method AATCC 20A. The initial Customs laboratory report was based on the two analyses from different parts of the sample which were averaged. The two initial test results were the following:

Test 1: Polyester...50.48% Cotton...49.52%

Test 2: Polyester...50.50% Cotton...49.50%

The average of the two tests were reported as polyester having 50.5 percent and cotton having 49.5 percent.

A third confirming test was run on the fabric approximately five months after the original analyses. The third test showed that the fabric contained 51.64 percent of polyester fibers and 48.36 percent of cotton fibers.

The laboratory analyses submitted by the protestant indicate that both of the tests employed the AATCC 20A method of analysis. The test results from the independent laboratories were the following:

Vartest Laboratories Inc.
Polyester...49.69% Cotton...50.31%

Inchcape Testing Services
Polyester...48.2% Cotton...51.8%

Customs has classified the subject merchandise under subheading 5513.41.00, HTSUSA, which provides for woven fabrics of synthetic staple fibers, containing less than 85 percent by weight of such fibers, mixed mainly or solely with cotton, of a weight not exceeding 170 g/m}: printed: of polyester staple fibers, plain weave. The protestant claims that this merchandise is classifiable under subheading 5210.21.60, HTSUSA, which provides for woven fabrics of cotton, containing less than 85 percent by weight of cotton, mixed mainly or solely with man-made fibers, weighing not more than 200 g/m}: bleached: plain weave: of numbers 43 to 68.


Whether the subject merchandise is in chief weight of cotton or in chief weight of polyester?


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 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.

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. The protestant claims that a single Customs laboratory analysis, using an undisclosed method, should not determine chief weight for the subject merchandise. In addition, there exist two independent laboratory reports, the protestant claims, that constitute strong evidence to contradict the results of the Customs laboratory analysis. The protestant argues, consequently, that the subject merchandise is in chief weight of cotton and the protest should be allowed.

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; United States v. Lozano, Son & Co., 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.

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:

These cases indicate that the final determination in situations where the merchandise approaches the borderline set by the tariff act depends upon the accuracy of the methods used and their application by the chemists who performed the tests. 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.

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. Concerning sample size, the Customs laboratory performed three tests. In addition, all of the tests were consistent, showing that the fabric was in chief weight of polyester. Finally, the results obtained by the Customs laboratory have only a slight variance; the percentage of fabric that tested polyester in the three analyses was 50.48, 50.50, and 51.64.

Based on the foregoing, we find that the protestant has not rebutted the presumption of correctness attached to the Customs laboratory analyses. Moreover, the testing done by the independent laboratories raises certain questions. We have no evidence concerning the number of tests and the size of the sample used by the protestant's outside laboratories. In addition, one of the independent laboratories cites a result based on a recalculated percentage based on moisture gain. We have no evidence if such a recalculation is valid for such an analysis.

Finally we have 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. See HRL 070173, dated December 27, 1982, in which Customs and the independent laboratory both used test method AATCC 20A.


Statistical Note 1(c) to Chapter 55, HTSUSA, states that the term "printcloth" means plain weave fabrics, weighing not more than 170 grams per square meter, of average yarn numbers 43-68, containing more than 33 singles yarns per square centimeter and not containing multiple (folded) or cabled yarns, of square construction, whether or not napped, of the following types: (i) fabrics, not combed; and (ii) other fabrics, measuring less than 168 cm in width. The subject merchandise has a width greater than 168 centimeters.

Consequently, if the subject merchandise is combed, it is classified under subheading 5513.41.0040, HTSUSA, which provides for woven fabrics of synthetic staple fibers, containing less than 85 percent by weight of such fibers, mixed mainly or solely with cotton, of a weight not exceeding 170 g/m}: printed: of polyester staple fibers, plain weave, sheeting. The rate of duty would be 17 percent ad valorem, and the textile category would be 613.

If the subject merchandise is not combed, it is classified under subheading 5513.41.0060, HTSUSA, which provides for woven fabrics of synthetic staple fibers, containing less than 85 percent by weight of such fibers, mixed mainly or solely with cotton, of a weight not exceeding 170 g/m}: printed: of polyester staple fibers, plain weave, printcloth. The rate of duty would be 17 percent ad valorem, and the textile category would be 615.

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.


John Durant, Director

Previous Ruling Next Ruling

See also: