HQ 951636: Decision on Application for Further Review of Protest No. 1001-0-001644; Classification of Cotton/Polyester Knitted Sweat Shirts; Heading 6110

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            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