Reconsideration of HQ H200432; tariff classification of polyester knit fabric

HQ H266050 August 18, 2016 CLA-2 OT:RR:CTF:TCM H266050 PJG CATEGORY: Classification TARIFF NO.: 6001.92.00 Mr. Peter J. Duncan, Sr. Duncan Ticking P.O. Box 60862 Oklahoma City, OK 73146 RE: Reconsideration of HQ H200432; tariff classification of polyester knit fabric Dear Mr. Duncan: This is in response to your letter, dated June 5, 2015, requesting the reconsideration of Headquarters Ruling Letter (“HQ”) H200432, dated April 15, 2015, a reconsideration of New York Ruling Letter (“NY”) N092517, dated June 3, 2010. In HQ H200432, this office affirmed NY N092517, which classified two styles of polyester fabric, identified as Soflon 5.0/5.5mm Cream and HiSoftex Ivory Boucle under subheading 6001.92.00 of the Harmonized Tariff Schedule of the United States (“HTSUS”). We affirm HQ H200432 because we find that the two styles of polyester fabrics are constructed of warp knit cut pile. NY N092517 described the two fabrics, in relevant part, as follows: Your correspondence indicates that all three fabrics will be used as mattress ticking coverings for the production of mattresses. The first submitted sample is identified as product name Soflon 5.0/5.5mm Cream, and described as a warp knit fabric, of 100% polyester dyed filament yarn. Laboratory analysis indicates that it is a warp knit cut pile fabric composed wholly of polyester fibers, weighing 263.2 g/m2 and measuring 13 stitches per centimeter in the vertical direction. You have indicated that the fabric will be imported in rolls in widths of 235 centimeters.The second item, identified as product name HiSoftex Ivory Boucle, is described as a warp knit fabric, of 100% polyester dyed filament yarn. Laboratory analysis indicates that the fabric a warp knit cut pile fabric, weighing 257 g/m2 and measuring 13 stitches per centimeter in the vertical direction. You have indicated that the fabric will be imported in rolls in widths of 235 centimeters. In HQ H200432, we noted the following concerning the samples of the Soflon 5.0/5.5mm and HiSoftex fabrics: Samples of the Soflon 5.0/5/5 and HiSoftex fabrics at issue were sent to the CBP laboratory for analysis. In Laboratory Reports NY20100156 and NY20100159, the CBP Laboratory concluded that both samples were warp knit cut pile fabric. In NY20100159, the Laboratory concluded that the HiSoftex fabric featured 3 bar warp knit cut pile construction, and that the front bar yarn had been cut to create the cut pile surface. In your request for reconsideration, you continue to assert that the Soflon 5.0/5.5mm Cream and HiSoftex Ivory Boucle are not warp knit cut pile fabrics, but are brushed warp knit fabrics. Pursuant to 28 U.S.C. § 2639(a)(1), U.S. Customs and Border Protection enjoys a statutory presumption of correctness. Thus, “an importer has the burden to prove by a preponderance of the evidence that a Customs’ decision” was incorrect. Ford Motor Company v. United States, 157 F.3d 849, 855 (Fed. Cir. 1998). Furthermore, “[i]t 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.” Aluminum Company of America v. United States, 477 F.2d 1396, 1398 (C.C.P.A. 1973) (hereinafter Alcoa). Absent a conclusive showing that the testing method used by the CBP laboratory is in error, or that the CBP laboratory results are erroneous, there is a presumption that the results are correct. See Exxon Corp. v. United States, 81 Cust. Ct. 87, 90-91 (1978). “If a prima facie case is made out, the presumption is destroyed, and the Government has the burden of going forward with the evidence.” Alcoa, 477 F.2d at 1399. Along with your request, you submitted an unidentified white fabric that you described as “our manufacturer’s goods before it is treated or changed in any way.” The unidentified white fabric was submitted to the CBP laboratory for testing. In CBP Laboratory Report NY20151265, dated August 24, 2015, the CBP laboratory concluded, in relevant part, that: The white fabric is of 3 bar warp knit uncut pile construction and previously submitted samples are of 3 bar warp knit cut pile construction. In addition, the pictures of the machinery you claim are used to produce the fabrics, the “fabric classification guidelines” concerning the Soflon fabric, and the email you submitted from the manufacturer are insufficient to rebut the findings of the CBP laboratory. Accordingly, we affirm HQ H200432, dated April 15, 2015, which correctly classified the subject merchandise under subheading 6001.92.00, HTSUS, as “Pile fabrics, including “long pile” fabrics and terry fabrics, knitted or crocheted: Other: Of man-made fibers.” Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division