CLA-2 RR:TC:TE 960362 jb
Port Director
U.S. Customs Service
U.S. Customhouse
1 East Bay Street
Savannah, GA 31401
RE: Decision on Application for Further Review of Protest No.
1703-97-100029; raw cotton, Gossypium Hirsutum, Not Carded
or Combed; sampling of raw cotton in bales based on ASTM
Standard D-1441
Dear Sir:
This is a decision on application for further review of a
protest timely filed by D. J. Powers Company, on behalf of
American Cotton Suppliers, on February 6, 1997, against your
decision regarding the classification of raw cotton. All entries
were liquidated on November 15, 1996.
FACTS:
The merchandise that is the subject of the present protest
consists of cotton fiber imported in bales from Uzbekistan. A
sampling of the cotton was taken at the time of examination and
sent to the Department of Agriculture Laboratory in Memphis,
Tennessee. The laboratory found the average staple length of the
samples to be 29.388 millimeters for one lot of 39 samples, and
28.854 millimeters for the other lot of 76 samples. Based on
that laboratory report Customs classified the merchandise in
subheading 5201.00.2200, Harmonized Tariff Schedule of the United
States Annotated (HTSUSA), which provides for certain cotton, not
carded or combed, having a staple length of 28.575 mm (1-1/18
inches) or more but under 34.925 mm (1-3/8 inches).
The Protestant disagrees with this classification and states
that all documentation (purchase order, confirmation, commercial
invoice and purchase confirmation by the importer's U.S.
customer) for the shipment indicates that the length of the
purchased cotton was 1-1/16 inches. Furthermore, the Protestant
objects to the following:
1. the results of the laboratory examination (which
Protestant indicates are merely based upon "small
samples from 10 percent of bales of the shipment"); and
2. the fact that the Protestant's request for
redetermination was denied.
Accordingly, the Protestant claims that the correct
classification for this merchandise is in subheading
5201.00.1200, HTSUSA, which provides for certain cotton, not
carded or combed, having a staple length under 28.575 mm (1-1/8
inches).
ISSUE:
Whether the staple length of the cotton was accurately
determined?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) is in accordance
with the General Rules of Interpretation (GRI). GRI 1 provides
that classification shall be determined according to the rules of
the headings and any relative section or chapter notes, taken in
order. Merchandise that cannot be classified in accordance with
GRI 1 is to be classified in accordance with subsequent GRI.
Chapter 52, HTSUS, provides for cotton. Additional U.S.
Note 1 to Chapter 52, HTSUS, states:
Under regulations prescribed by the Secretary of the
Treasury, the staple length of cotton shall be determined
for all customs purposes by application of the Official
Cotton Standards of the United States for length of staple,
as established by the Secretary of Agriculture and in effect
when the determination is to be made.
Additional U.S. Notes 5 through 8 to Chapter 52, HTSUS, represent
the cotton fiber tariff-rate quotas (TRQs). These quotas,
administered by the Department of Agriculture, are represented by
the relevant provisions and notes of chapter 99 subchapter IV.
However, General Note 15 of the HTSUSA, states, in relevant
part:
Exclusions. Whenever any agricultural product of chapters 2
through 52, inclusive is of a type (i) subject to a tariff-rate quota and (ii) subject to the provisions of subchapter
IV of chapter 99, entries of such products described in this
note shall not be counted against the quantity specified as
the in-quota quantity for any such product in such chapters:
* * *
(e) cotton entered under the provisions of U.S. note 6 to
subchapter III of chapter 99 and subheadings 9903.52.00
through 9903.52.20, inclusive.
The provisions of subheadings 9903.52.00 through 9903.52.20,
HTSUS, which constitute a temporary opening of the TRQs by the
Secretary of the Agriculture when certain market conditions
exist, were in effect at the time of this importation. These
special quotas are applicable only to duly certified "upland
cotton" purchased and imported within specified periods of time.
The cotton was classified under 9903.52.06, paired with
5201.00.2200, HTSUSA. The Protestant does not dispute the fact
that the cotton was "upland cotton" eligible for the special
agricultural quotas of subheading 9903.52. The Protestant
however, does find fault in the way the sampling of the cotton
was administered.
The subject shipment consisted of two lots. The Laboratory
found the average staple length of the samples to be 29.388
millimeters for one lot of 39 samples, and 28.854 millimeters for
the second lot of 76 samples. The test used by the Laboratory to
determine the average staple length of the cotton is based on
Customs Regulations, 19 CFR 151.83, Method of Sampling, which
states:
For determining the staple length of any lot of cotton for
any Customs purposes, samples of the lot shall be taken in
accordance with commercial practice. (Emphasis added)
The term "commercial practice" is represented by the
American Society of Testing Materials (ASTM) Standard D-1441,
which states, in part:
As a lot sample for acceptable testing, take at random the
number of shipping containers as directed in an applicable
material specification or other agreement between the
purchaser and supplier. In the absence of such an
agreement, take ten shipping containers or 10% of the
shipping containers in the lot, whichever is the greater.
Consider bales or other shipping containers to be the
primary sampling units.
D-1441 proceeds to instruct on "where" and "how much" to
sample from each bale:
For bales, take a 100-g (4-oz) subsample of cotton from each
of two opposite sides of each bale in the lot sample and
combine the two subsamples into a single laboratory sample
weighing 200g (8oz).
There is no evidence or indication that the sampling
methodology used by the Port did not comply with the acceptable
industry standard. Furthermore, the referenced sampling
methodology has a firm basis in the Customs Federal Regulations.
In the absence of such evidence, it is our opinion that the
staple length of the cotton was accurately determined. As such,
there was no need for a redetermination of the testing for staple
length. Accordingly, the proper classification for this
merchandise remains in subheading 5201.00.2200, HTSUSA.
HOLDING:
The subject merchandise, was correctly classified in
subheading, 5201.00.2200, HTSUSA, which provides for cotton, not
carded or combed, having a staple length of 28.575 mm (1-1/8
inches) or more but under 34.925 mm (1-3/8 inches): described in
general note 15 of the tariff schedule and entered pursuant to
its provisions. The applicable rate of duty is 4.4 cents/kg.
The protest should be denied in full and a copy of this
ruling should be appended to the CF 19 Notice of Action to
satisfy the notice requirement of section 174.30(a) Customs
Regulations.
In accordance with Section 3(A)(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed by your 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, Freedom of Information Act
and other public access channels.
Sincerely,
John Durant, Director
Tariff Classification Appeals
Division