565 F.2d 674 | C.C.P.A. | 1977
This appeal is from the judgment of the United States Customs Court, 77 Cust. Ct. 72, C.D. 4673, 426 F. Supp. 556 (1976), holding that certain elastomeric fibers known as “Sarlane” were properly classified as monofilaments under items 309.03 or 309.06, Tariff Schedules of the United States (TSUS), as modified by T.D. 68-9, depending on the denier of the fiber, rather than grouped filaments under item 309.31, as claimed by appellant. We affirm.
Background,
Schedule 3, Part 1, TSUS, covers, among other things, textile fibers. Subpart E provides in pertinent part:
Subpart E Headnotes:
3. For the purposes of this subpart—
(b) the term “monofilaments” embraces single filaments (including single filaments of laminated construction or produced from two or more filaments fused, or bonded together), whether solid or hollow, whether flat, oval, round, or of any other cross-sectional configuration, which are not over 0.06 inch in maximum cross-sectional dimension;
(e) the term “grouped filaments and strips” embraces two or more filaments or strips, as defined in (a), (b), (c), and (d) of this headnote, grouped together with the filaments or strips substantially parallel and not twisted, but the term does not include grouped filaments which have been subjected to processes such as twisting and untwisting, false twisting, crimping, and curling, and which are useable as yams; ' • • ■ '
*24 Monofilaments (in continuous form), with or without twist, whether known as monofils, artificial horsehair, artificial straw, yarns or by any other name:
Not over 150 denier:
309.03 Valued over 80 cents per pound Over 150 denier: 35% ad val.
309.06 Valued over 85 cents per pound- 24% ad val.
Grouped filaments and strips (in continuous form), whether known as tow, yarns, or by any other name:
Wholly of grouped filaments (except laminated filaments and plexi-form filaments):
Other:
309.31 Valued over 80 cents per pound- 14%% ad val.
Sarlane, the trade name for appellant’s product, is a spandex
Proceedings Below
The Customs Court observed that the statutory definition of “monofilaments” in headnote 3(b) is not limited to single filaments,
The court noted that appellant has the burden of proving by a preponderance of the evidence that the Government’s classification was incorrect; but that appellant’s witnesses could not deny the existence of the phenomena that caused Dr. Couper to conclude that the filaments had “coalesced” or “fused,” particularly their incapability of being separated without causing a “webbing” or “tearing.” Accordingly, the court concluded that individual filaments in Sarlane “have been fused or bonded together in the process of its production” and denied the protest.
The “Single” Filament Issue
Appellant initially urges that the Customs Court bypassed the threshold issue of whether Sarlane is a single filament. It contends that in order to be properly classifiable as a “monofilament,” the individual filaments in Sarlane would have to be fused or bonded together into a single filament.
Such a restrictive interpretation would also be contrary to the commercially understood meaning of "monofflament"; whereas, the terms in tariff acts presumably carry the meaning given them in trade and commerce. Barnebey-Cheney Co. v. United States, 61 CCPA 10,
Although, as pointed out by appellant; Congress was made aware of such functional monofilaments in a proposed amendment by the Man-Made Fiber Producers Association (MFPA) to the definition of “grouped filaments” to exclude such functional monofilaments from ' that item, and did not adopt the amendment, we are not persuaded that this evidenced Congressional intent to include filaments such as Sarlane under the “grouped filaments” item. While the MFPA proposal was not accepted, the definition of “monofilaments,” which theretofore had been restricted to single, unitary filaments,
Appellant further argues that Sarlane is not a “functional mono-filament”, because “it exhibits characteristics of a true multifilament in that its fibers act independently.” However, the issue is whether the individual filaments in Sarlane are “fused, or bonded together,” not whether they exhibit multifilament characteristics.
The “Fused or Bonded Together” Issue
Dictionary definitions of “fused” and “bonded,” supra notes 3 and 4, indicate that fusing requires heating and melting, while bonding requires the presence of an adhesive substance. However, since we are concerned with the meaning of “fused” and “bonded” in the fiber industry for tariff purposes, testimony regarding the commercial usage of those terms is highly relevant. See E. Dillingham, Inc. v.
Turning to the process from which Sarlane is produced, Dr. Peters admitted that “flow or creep” (i.e., “molecular moveinent, slippage”) of spandex-type fibers could occur at the temperatures used in the drying stage. He also testified that the filaments were under slight tension as they passed through the dryer.
Appellant challenges the conclusion of the Customs Court and the testimony of Dr. Couper that there was flow or movement of material between Sarlane filaments during the drying stage, arguing that its witnesses were discussing only creep or flow within individual filaments. However, Dr. Peters testified that his own patent, which was directed to a slightly different process of producing spandex fibers, taught that fusing occurred between individual filaments at temperatures below the melting point of the spandex.
We are satisfied that the Customs Court did not err in concluding that individual filaments in Sarlane were “fused, or bonded together” to the extent that such filaments were thereafter no longer independent filaments and that appellant failed to carry its burden of proving the Government’s classification incorrect.
Accordingly, the judgment of the Customs Court is affirmed.
Webster*8 Third New International Dictionary 21$1 (1971) defines “spandex” as:
any of various synthetic textile elastic fibers that are long-chain polymers composed of at least 85 percent of a segmented polyurethane.
Webster's Third New rnternationaz Dictienary 1462 (1961) defines "monofilamont" as:
a single untwisted synthetic filament (as of iiylon) made in varying diameters for use in textiles, hosiery, and screens or as bristles, fishing lines, and sutures-compare MULTIFILAMENT.
Webster’s supra note 2 at 925, defines “fused” as:
la: melted together: united by heating. ...
Webster’s supra note 2 at 250, defines “bond” as:
an adhesive that binds different ingredients together.... 3: to bind together or connect by or as if by bonds: as a: to cause to adhere firmly (as metal to glass or plastic).
Fairchild’s Dictionary of Textiles 246 (1967) defines and contrasts fusing and bonding:
Fusing: The chemical joining of two fabrics to become one fabric, as opposed to bonding, in which th fabrics are joined, but do not become one fabric.
Tariff Classification Study, supra, at 285.
Id. at 515.
Testimony of Golub:
Q. What does the term coalesced mean?
A. Coalesced is the equivalent of fused. ‘
See note 4, supra.
Since the common meaning of tariff terms is a question of law, testimony of witnesses on that question is not binding on this court. See United States v. Norman G. Jensen, Inc., 64 CCPA 51, C.A.D. 1183, 660 F.2d 662 (1977).
The Peters patent uses more solvent than is present in the filaments of Sarlane at the drying stage to render the spandex to a semi-plastic state in which fusing occurs. However, Peters did admit that heat and solvent were equivalent in obtaining fusing of filaments. . .
Johanson blocks are flat plates of finely polished metal. When put together face-to-face, they cannot ■be-pulled apart; they'must be slid apart. Individual filaments of Sarlane are quite difficult to separate ‘•(Peters could only separate them into three bundles, not the 18 individual filaments) and cannot be made cohesive again by merely pushing them hack together.