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HQ 960362




August 22, 1997

CLA-2 RR:TC:TE 960362 jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 5201.00.2200

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

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