HQ 957638 - Application for Further Review of Protest 1512-94-100166, dated October 25, 1994, and Protest 1512-94-100216, dated December 15, 1994 - United States International Trade Commision Rulings

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HQ 957638

November 3, 1995

CLA-2 RR:TC:FC 957638 ALS

CATEGORY: CLASSIFICATION

TARIFF NO.: 4010.91.1500; 4010.99.1500

Port Director of Customs
1801-K Cross Beam Dr.
Charlotte, NC 28217

RE: Application for Further Review of Protest 1512-94-100166, dated October 25, 1994, and Protest 1512-94-100216, dated December 15, 1994

Dear Mr. Babb:

This ruling is on protest filed against your decisions rendered between August and November, 1994, concerning multiple entries of belts and belting.

FACTS:

The articles under consideration are aprons (belts), known as draft aprons, and apron tubes (belting), which are cylindrical sleeves. The aprons are 2 to 3 cm wide and in the 50 mm diameter range, used in spinning frames. They basically function as a conveyor guiding yarns through part of the yarn spinning process. The tubes are cylindrical sleeves, in excess of 20 cm wide, from which individual aprons are cut to a specific width. The items are made by encasing yarns, composed of a blend of cotton and polyester fibers, in nitrile rubber and vulcanizing them. Classification is dependent on whether the natural or man-made fiber predominates by weight. The tubes were originally classified under subheading 4010.91.1590 (now 4010.91.1500) Harmonized Tariff Schedule of the United States Annotated (HTSUSA). The belts were originally classified under subheading 4010.99.1590 (now 4010.99.1500), HTSUSA.

ISSUE:

Which of the 2 fibers, cotton or polyester, utilized in the composition of the articles, predominates by weight and is, therefore, the basis for classification?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRI's) taken in order. GRI 1 provides that the classification is determined first in accordance with the terms of the headings and any relative section and chapter notes. If GRI 1 fails to classify the goods and if the headings and legal notes do not otherwise require, the remaining GRI's are applied, taken in order.

Both the importer and Customs, at the ports of entry where the belts and belting have been imported, agree that this articles are classifiable in heading 4010, HTSUSA. A question, however, exists at the subheading level. Classification at that level is based on a factual determination as to which of the fibers in the product, cotton or polyester, predominates by weight.

The Customs laboratory has repeatedly tested the imported products by two different methods, wet (chemical separation) and optical. It has also tested samples of the virgin fibers and products, although not from the actual importation shipments, stated to be the same as the imported product. Its analyses consistently found that polyester fibers predominated by weight over the cotton fibers.

The Customs laboratory analyzed the samples as required by General Explanatory Note (IV) to Section XI of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) entitled "Standard Atmosphere for conditioning and Testing of Textiles." The laboratory was further guided by the American Association of Textile Chemists and Colorists (AATCC) test method.

Counsel for the importer has noted that private laboratories in Germany and the United States have reached a different conclusion in their analyses. It is stated that the German laboratory used the DIN (Deutsche Industrie Normen) method, a recognized German testing standard. No particulars were provided in that laboratory's report as to any of the testing procedures (except for a conclusion as to fiber content) or that the product tested was exactly the same as the imported product in its condition at the time of importation. We, however, note that the DIN procedures which counsel stated were the procedures followed, differ from the Explanatory Notes (EN) and American standard procedures, which we are obligated to follow. Thus, without - 3 -
commenting on the validity of the DIN procedure or any findings from such testing, we find that we are unable to accept such results in lieu of results flowing from analyses following the EN and AATCC procedures.

Similarly, while counsel presents certain conclusions as to the particulars of the testing method used by the private laboratory in the U.S., we note that the report of that laboratory only presents their stated findings. Their report does not specify what they tested, if it was the product(s) as imported or the same as those product(s) in all respects, what procedure they used, etc.

Counsel attributes differences in the analytical results produced by such laboratory to the use of a methylene blue dye to identify the fibers. We do not believe that the variance in findings between that laboratory and the Customs laboratory was due to the blue dye. The Customs laboratory attempted to use the same staining technique used by the U.S. private laboratory and found that it hindered the identification of the fiber types. The Customs laboratory found that a congo red stain was a better choice, but that the fibers could be identified as well without a stain.

While we recognize that the analysis of the subject imported product, which requires one to determine the composition of yarn fibers that arrive in the United States imbedded in rubber, is difficult, we find no basis for concluding that Customs laboratory analyses are incorrect or somehow faulted. In view of this and the fact that the analyses of the Customs laboratory over an extended period of time, following the noted procedures, have consistently found that the polyester fiber in the subject products is the predominant fiber by weight, we find no basis for rejecting those findings.

HOLDING:

Belts (aprons) and belting (tubes), composed of a blend of cotton and polyester fibers encased in rubber, in which the polyester fiber predominates by weight, are classified, respectively, in subheadings 4010.99.1500 and 4010.91.1500, HTSUSA. Merchandise so classified is subject to a rate of duty of 7.7 percent ad valorem and 8 percent ad valorem, respectively.

Since the classification indicated above is the same as the classification under which the entry was liquidated, you are instructed to deny the protest in full.

A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as a part of the notice of action of the protest.

In accordance with Section 3A(11)(b) of Customs Directive 099 3553-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be provided by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entries in accordance with this decision must be accomplished prior to the 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

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