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HQ 959681

March 27, 1998

CLA-2 RR:TC:TE 959681 RH


TARIFF NO.: 5205.23.0000

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.


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.

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.


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?


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.

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.

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.

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:

Visual examination of the yarn reveals a moderate to excessive amount of cotton trash in both cones.

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.

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.

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.

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.


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.


John Durant, Director
Commercial Rulings Division

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