CLA-2 RR:TC:TE 959681 RH
Port Director
United States Customs Service
300 South Ferry Street
Los Angeles, CA 90731
RE: Application for Further Review of Protest No. 2704-96-101765; Cotton Yarn;
Combed vs. Carded; Subheading 5205.23; Subheading 5205.13;
Customs laboratory test
results; Private laboratory test results; Exxon v. United
States, 462 F. Supp 378; Presumption of correctness
Dear Sir:
This is in response to your memorandum dated August 15, 1996,
concerning the Application for Further Review of Protest (AFR)
No. 2704-96-101765, filed by Siegel, Mandell & Davidson, P.C., on
behalf of Titan Spun Yarns, Inc. The AFR was timely filed and is
warranted under
19 CFR 174.21(b).
An attorney from my staff met with you on September 12, 1997, to
discuss the issues in this case, and you submitted further
comments on November 4, 1997.
FACTS:
The merchandise under protest is 100 percent cotton yarn which
was imported into the United States on June 30, 1995. The
protestant filed an Entry Summary on July 18, 1995, and
classified the yarn under subheading 5205.13.1000 of the
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA), a provision for uncombed yarn.
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Customs obtained a sample cone of yarn from the shipment in
question prior to release of the merchandise and sent it to a
Customs laboratory for analysis on July 17, 1995. The
laboratory found that the yarn was combed and not solely carded
as entered by the protestant. Therefore, a Notice of Action (CF
29) for a rate advance issued to the protestant on February 12,
1996, classifying the merchandise under subheading 5205.23.0000,
HTSUSA, a provision for combed yarn.
The sample is still in Customs custody.
ISSUES:
Does the evidence submitted by the protestant overcome the
presumption of correctness of the Customs laboratory findings?
Did Customs laboratory apply the correct standard in analyzing
the yarn in question?
LAW AND ANALYSIS:
In support of the claim that the yarn under protest is carded,
not combed, counsel makes three primary arguments: (1) that the
Customs laboratory did not apply the correct standard in
analyzing the yarn fibers; (2) that the Customs laboratory report
is contrary to how the yarn was purchased and marketed; and, (3)
that the presumption of correctness of the Customs laboratory
report is rebutted by three private laboratory reports which have
a different finding.
Fairchild's Dictionary of Textiles (Sixth Edition) 1979, defines
combed cotton yarn as: "A cotton yarn which has been combed. The
yarn is more even, compact, has fewer projecting fibers and can
be spun into finer counts than carded cotton."
The process of combing is described as:
A step subsequent to the carding process in both cotton
and worsted yarn manufacture. The process separates
the long, choice, desirable fibers of the same length,
from the nep and short, immature, undesirable stock
that is called noil. The comb, (q.v.) straightens and
arranges them in parallel order, in the form of sliver.
Practically all remaining foreign matter is removed
from the fiber stock. Only the best grades of cotton
and wool may be combed. Combed yarns are finer and
cleaner than carded yarns. Combing is necessary for
the production of fine yarns and is also applied to
coarser yarns when high quality is desired.
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The Customs laboratory determined that the yarn in question is
combed. Customs laboratory report number 7-95-10782-001 states
that:
The sample, a cone of yarn, contains unbleached single-ply yarns composed wholly of cotton. The sample has the
characteristics of non-mercerized and combed cotton
yarns and has the following:
Weight in Grams (including support): 3212.7
Metric Number (NM): 51
The first argument counsel asserts is that the Customs laboratory
did not apply the correct standard in analyzing the yarn.
However, there is not one single test that will determine
categorically whether cotton fibers are carded or combed, but
there are various tests that will determine whether it has the
characteristics of carded or combed yarn.
The findings in the Customs laboratory report, are founded on
four separate tests performed on the yarn. In preparation for
the tests, the laboratory obtained both carded and combed yarn
from a yarn manufacturing plant in North Carolina (which produces
yarns from raw cotton) to use as a reference (accurate
comparison) with the sample under consideration. The reference
materials were a similar yarn size to the sample in question.
One of the tests Customs performed was the measurement of fiber
length using a calibrated image analysis system. The preparation
and measurement of the fibers were consistent with American
Society for Testing Materials (ASTM), Standard Test Method for
Length and Length Distribution of Man-Made Staple Fibers (Single
Fiber Test) ASTM D5103. Note that ASTM D5103, Section 5.2
provides objective measurements for fiber length.
An article on Combed Cotton Yarn in the U.S. Customs Technical
Bulletin, Volume 18, Number 1, dated January/March 1984, states
that: "The fundamental purpose of combing is to separate the
short cotton fibers from the longer ones so that the combed
fibers will be of a much more uniform length and of a longer
average staple (natural fibers)." Additionally, Corbman's
Textiles Fiber to Fabric (sixth edition), 1983, states the
following regarding combing of cotton fibers: "In this
operation, fine-toothed combs continue straightening the fibers
until they are arranged with such a high degree of parallelism
that the short fibers, called noils, are combed out and
completely separated from the longer fibers."
.
In determining the fiber length, Customs removed 160 fibers from
the sample in question and compared them against 232 fibers from
the combed yarn reference and against 239 fibers from the carded
yarn reference. The comparison illustrated that the sampled yarn
was similar in fiber length distribution to the standard
reference combed yarn and not to the standard reference carded
yarn. Customs did not test fibers "at various stages prior to
spinning" as the protestant claims.
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Customs measured fiber lengths from an imported cone of yarn and
compared these measurements to fibers from reference combed and
uncombed yarns using a standard ASTM method (D5103). This test
method provides objective measurements for determining the
average fiber length and length distribution in a sample of
fiber.
In the supplemental submission, counsel argues that the ASTM
D5103 test "skews the fiber length distribution curve toward
longer fiber lengths, relative to the fiber lengths of the bale
laydown that was utilized to produce tested yarn." We found no
evidence supporting that claim.
In another test, Customs analyzed the yarn number under Standard
Test Method for Yarn Number, by the Skein Method, ASTM D1907.
This test determines the yarn count using a yarn reel. When
medium counts are combed, better strength, uniformity and
appearance are expected. See, U.S. Customs Technical Bulletin
article on Combed Cotton Yarn. In this case, the yarn number is
metric number (nm) 51 and the cotton count is 30.
A third test performed by Customs is consistent with the Standard
Test Method for Maturity of Cotton Fibers (Sodium Hydroxide
Swelling and Polarized Light Procedures), ASTM D 1442. Customs
used the qualitative polarized light procedures and examined
fibers under a polarizing microscope with a magnification of
100x. The examiner was unable to find neps. A high frequency of
neps in the yarn is an indication that the yarns have not been
combed. Customs also examined the yarn under a stereomicroscope
with a magnification of 20x. The examiner was unable to see an
abundance of foreign matter.
Information regarding the percentage of immature fibers is
desirable because immature fibers: (1) break easily during
processing; (2) have a tendency to form neps; (3) have a tendency
to become entangled around particles of trash and leaf, thus
making cleaning more difficult and increasing the amount of fiber
removed with foreign matter; (4) adversely affect yarn and fabric
appearance; and (5) may appear differently after dyeing. ASTM D
1442, Section 5.1.
Customs also completed a yarn uniformity test in accordance with
U.S. Customs Technical Bulletin article Combed Cotton Yarn by
winding lengths of the sample yarn on a black board and comparing
the appearance to an actual combed yarn reference and to a carded
yarn reference. The yarn was examined for evenness, in
particular noting whether there were any thick or thin sections
in the yarns. Combed yarns generally have a very uniform
appearance whereas carded yarns contain thick and thin sections
as well as neps, slubs and foreign matter. As described above,
Customs found the yarn to be very uniform and no unevenness was
observed. The examiner was unable to see an abundance of foreign
matter.
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The protestant submitted three private laboratory reports that
conclude the yarn is carded, not combed. A laboratory report
from Hamby Textile Research Laboratories, dated March 7, 1996,
reports that two cones of 30/1 100 percent cotton yarn were
evaluated to determine if they contained carded or combed cotton.
Hamby reports the findings as follows:
OVERALL FABRIC EVALUATION:
Visual examination of the yarn reveals a moderate to
excessive amount of cotton trash in both cones.
EVALUATION BY SPINNING PERSONNEL:
The consensus of two experienced spinning managers, and
three experienced laboratory technicians is that the
yarn contains far too much large size cotton plant and
seed debris to have been processed from combed cotton.
CONCLUSIONS:
It is the conclusion of this laboratory that the above
described yarn was processed from carded cotton.
Zellweger Uster, Inc. conducted another independent evaluation on
"two yarn packages" which were evaluated on a "User Tester 3"
equipped with count determination and a "Uster Hairiness
Analyzer." The purpose of the test was to determine if
significant quality differences exist between the known combed
yarn sample and the second yarn package. The known combed yarn
package was identified as Test 1 in the report, the unknown
package was identified as Test 2. The report states in pertinent
part:
As you are probably aware, the combing process removes
short fiber, trash, and neps. As a result of this
process, properly combed yarns tend to be more even,
have fewer imperfections, and are stronger than
comparable carded yarn. The evenness results from the
two yarn samples support this point. The known combed
package (Test 1) was much more even and had far fewer
imperfections than the yarn in Test 2 (see attachment).
Based on the data from these two samples, there is a
strong inference that the sample in Test 2 is a carded
yarn.
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Finally, Dillon Yarn Corp., a company related to the protestant,
conducted the third test on four cones of yarn. The report
states:
I ran the yarn through the Uster evenness tester. The
results were that the CV%, thins and thicks were too
high to be a satisfactory combed cotton product. They
were in the range of an average carded cotton product.
I boarded the yarn and visually inspected comparing
with the ASTM spun yarn appearance standards. The yarn
graded a "C" in appearance. It had entirely too many
neps to be a combed cotton product. My conclusion is
that the yarn is a carded cotton product. Hamby
Textile Research also concludes that the yarn is a
carded cotton product.
Counsel submits that the three private laboratories used
recognized industry testing standards, including visual
inspection against ASTM standards and specific quantifiication of
the difference between the imported yarns and combed yarn. To
support his claim that the three private laboratory reports prove
that the Customs laboratory findings were erroneous, counsel
cites Consolidated Curtain Corp. Et. Al. V. United States, C.D.
2512 (1965). In that case, the court held that multiple tests by
the importer were more accurate than the single test performed by
the government.
The facts of the instant protest, however, are easily
distinguishable from Consolidated. In that case, the government
chemist did not follow any procedure prescribed by regulation or
in an official manual, and the Customs laboratory did not have a
standard method for analyzing the merchandise. The Court noted
that "an officially established method would present a different
question with which this opinion is not concerned." In the
instant case, Customs performed four tests, all of which are
recognized industry testing standards. In fact, three out of the
four tests performed by Customs were consistent with standard
ASTM tests, the same standards used by the private laboratories
It is well established that the methods of weighing, measuring,
and testing merchandise used by Customs officers and the results
obtained are presumed to be correct. See, Exxon v. United
States, 462 F. Supp 378 (1978), 81 Cust. Ct. 87, Cust. Dec. 4772.
However, this method may be rebutted by showing that such
methods are erroneous. Sears v. United States, 3 Ct. Cust.
Appls. 447, T.D. 33035. Furthermore, the presumption does not
have evidentiary value and may not be weighed against relevant
and material proof offered by the plaintiffs.
In this case, Customs has followed the testing standards set
forth in the ASTM and the Technical Bulletin. There is no
evidence that has been presented to this office which establishes
that either the methods used by Customs, or the results obtained,
were erroneous. There is also no evidence that the private
laboratory tests are superior to the four tests Customs
performed.
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We also point out that sometime after Customs examined the yarn
in question, the protestant submitted fabric samples claimed to
be manufactured from the yarn in question. Customs performed
the same analysis on these samples as on the original sample.
The fiber length data did not compare to the fiber length data
from the original sample. The fabric samples also appeared to
contain much more trash than the original cone of yarn. Inasmuch
as the analysis of the cone of yarn submitted to the laboratory
represents the imported shipment, the analytical data indicates
that the yarn samples submitted by the protestant were not made
from the same yarn that is the subject of this Protest, and we do
not know if the samples tested by the independent laboratories
were the same as the yarn in question.
The second argument asserted by counsel is that the Customs
laboratory report is contrary to how the yarn was purchased and
marketed. Nevertheless, sales contracts describing merchandise
which is tested by Customs upon importation and found to be of a
better quality than ordered by the importer is not sufficient to
overcome the presumption of correctness, and disputes between the
protestant and its suppliers or customers are not relevant in
this case.
HOLDING:
The methodology used by the Customs laboratory is recognized by
standard industry practices and literature references for
differentiating combed yarn from carded yarn. Moreover, the
protestant did not present evidence to establish that the results
obtained by Customs of a sample taken from the actual imported
shipment were erroneous. Accordingly, the evidence submitted by
the protestant does not overcome the Customs laboratory findings.
The cotton should be classified under subheading 5205.23.0000,
HTSUSA, single yarn of cotton fibers exceeding 43 nm but not
exceeding 52 nm. The yarn is dutiable at the general column rate
of duty at 8.6 ad valorem, and the category number is 301.
In accordance with section 3A(11)(b) of Customs Directive Number
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be attached to the Customs Form
19, Notice of Action, and furnished 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 (On that date) the Office of Regulations and Rulings
will take steps to make the decision available to Customs
personnel via the Customs Ruling Module in ACS and to the public
via the Diskette Subscription Service, Freedom of Information
Act, and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division