Ameliotex, Inc. v. United States, C.D. 4673

• Decision Date: 19 November 1976
• Docket Number: Court No. 71-10-01429.,C.D. 4673
• Citation: 426 F. Supp. 556
• Parties: AMELIOTEX, INC. v. UNITED STATES.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

426 F. Supp. 556

AMELIOTEX, INC. v. UNITED STATES.

C.D. 4673; Court No. 71-10-01429.

United States Customs Court.

November 19, 1976.

Rode & Qualey, New York City (John S. Rode and Michael S. O'Rourke, New York City, of counsel), for plaintiff.

Rex E. Lee, Asst. Atty. Gen., Washington, D.C. (John A. Gussow, New York City, trial atty.), for defendant.

RE, Judge:

The question presented in this case pertains to the proper classification, for customs duty purposes, of certain Sarlane elastomeric fiber, invoiced as "Spandex Elastomeric Multi-Filament Yarns."

The merchandise, imported from Belgium in 1970, was classified as a monofilament under item 309.03 or 309.06 of the Tariff Schedules of the United States TSUS, as modified by T.D. 68-9, depending on the denier of the fiber (not presently at issue), and assessed with duty, respectively, at the rate of 35 or 24 percent ad valorem.

It is plaintiff's contention that the imported yarn consists of strands which are not monofilaments, as classified by the customs officials, but rather multifilaments, or grouped filaments, which have not been subjected to such processes as twisting and untwisting, false twisting, crimping, and curling. Hence, plaintiff protests the classification, and claims that the merchandise is properly dutiable at the rate of 14.5 percent ad valorem under item 309.31, as modified by T.D. 68-9.

The tariff schedules in schedule 3, part 1, subpart E, headnote 3 contain the following pertinent definitions:

"(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 . .' embraces two or more filaments . . grouped together with the filaments . . . 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 yarns;"

Items 309.03 and 309.06 of the tariff schedules, pursuant to which the merchandise was classified, provide as follows:

"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 ........... 35% ad val. Over 150 denier * * * * 309.06 Valued over 85 cents per pound .......... 24% ad val."

Plaintiff claims that the merchandise is dutiable pursuant to item 309.31 which provides:

"Grouped filaments . . . (in continuous form), whether known as tow, yarns, or by any other name: Wholly of grouped filaments (except laminated filaments and plexiform filaments): * * * * Other: * * * * 309.31 Valued over 80 cents per pound ....... 14.5% ad val."

"Sarlane," the trade name of plaintiff's product, is a "spandex" fiber noted for its elastomeric properties, i. e., the ability to stretch and recoil with a high and rapid recovery. It is used particularly in foundation garments, waistbands, sportswear, and sport hosiery.

Whether Sarlane yarn consists of "monofilaments," as classified by the customs officals, or "multifilaments" or "grouped filaments," as claimed by plaintiff, is a question of first impression before this court. In the last analysis, its determination depends upon the technical factual data presented. In large measure, the court's finding is based upon its evaluation of the expert testimony of the witnesses. More specifically, the decision must be grounded upon what occurred during the production or manufacture of Sarlane, and particularly in the drying process. In view of the importance of the expert testimony, and the technical aspects of the production of Sarlane, it will be necessary to summarize the evidence in some detail.

The record consists of the testimony of five witnesses, three called by the plaintiff, and two by the defendant. Of the seventeen exhibits in evidence, eight were introduced by plaintiff, and nine by defendant.

It must be noted, at the outset, that the statutory definition of "monofilaments" set forth in headnote 3(b) is not limited to single filaments, but also includes single filaments "produced from two or more filaments fused or bonded together." It is, therefore, inconclusive to assert that Sarlane consists of individual filaments. The important question is whether the filaments have been "fused" or "bonded." Apart from the definitions submitted by the expert witnesses who testified in this case, reference has been made to the various technical dictionaries that define these words. Bonding is described as a method of pressing fibers into thin sheets or webs that are held together by adhesive chemicals. See Fairchild's Dictionary of Textiles 71 (1967); Encyclopedia of Textiles 501 (1969). Fused is defined by Webster's Third New International Dictionary 925 (1961) as "melted together: united by heating . . reduced to liquid by heat; MOLTEN." The Encyclopedia of Textiles 508 (1969) also defines "fuse" as "to melt with the application of heat."

By their pleadings, the parties have narrowed the issue presented, and have agreed that Sarlane is neither of laminated construction, nor plexiform filaments, nor strips over 0.06 inch, but less than one inch in width, and not over 0.01 inch in thickness. The parties have also agreed that the merchandise is valued at over 80 cents per pound.

The question presented, therefore, is whether plaintiff has borne its burden of proof that Sarlane should have been classified as a multifilament or grouped filament, rather than a monofilament as found by the customs officials. Under the pertinent tariff provisions, it is clear that plaintiff cannot succeed unless it can prove that the filaments in the Sarlane fiber have not been fused or bonded together so as to constitute a monofilament. If a fusing or bonding has occurred, the imported merchandise has been correctly classified and the protest must be denied.

Dr. Timothy V. Peters, founder and president of plaintiff corporation, holds a doctorate from Rutgers University for majors in physical and analytical chemistry, and has nearly nineteen years experience in research, development, and production of spandex fibers. He holds U.S. Patent No. 3,699,205, and the Belgian and Japanese equivalents which cover the process he invented for the manufacture of Sarlane fiber. A Belgian company, Fabelta, Division of U.C.B., and a Japanese company, Fuji Spinning Company, Ltd., have been licensed to produce Sarlane under Dr. Peters' patents. The merchandise at bar is representative of the Sarlane produced in Belgium.

Plaintiff introduced into evidence a schematic process flow chart to describe the patented method of production of Sarlane in Belgium. It was used by Dr. Peters to describe the process from its basic raw materials, through a reaction producing polyurethane in solution, to extrusion of the fully reacted product through a spinnerette whereby ten groups of filaments, eighteen filaments to a group, are produced. He explained how the individual filaments are lead through extraction baths to extract the solvent, gathered into groups of eighteen, dried to remove any individual water, lubricated as a group to prevent sticking together, wound onto packages, inspected and shipped to customers. Dr. Peters also contrasted this wet spinning process, by which Sarlane is produced, with three other manufacturing processes for the production of spandex fibers.

The testimony reveals that the melting point of Sarlane is between 240 and 245 degrees centigrade, and that during its production process, Sarlane is not exposed to temperatures greater than 190 to 195 degrees centigrade. Dr. Peters testified that at 195 degrees centigrade, reached during the drying process, Sarlane filaments are capable of "flow and creep." Predicated upon this testimony, the defendant, in its post-trial brief, submits that this phenomenon indicates that the filaments have been fused. Plaintiff explains that the terms "flow" and "creep," as used by Dr. Peters, only indicate the potential of the Sarlane molecules to flow by one another "inside the individual filament itself," in a time-independent process to relieve internal stress. Dr. Peters testified that Sarlane "does not melt at all in the process of manufacture" permitting each individual filament to maintain the "same outward appearance" during this phenomenon. He added that elastomeric products such as Sarlane do have, however, a "natural tack" which causes the eighteen individual filaments to remain in a group rather than coalesce. He attributed this to the low modulus of the filaments which permits a maximum area of surface contact.

Dr. Peters asserted that the eighteen filaments in a strand of Sarlane could be separated by hand manipulation. Having testified that "two or three separate filaments" had been separated from the strand, he stated that with time he could separate all eighteen. He explained the fact that the separate filaments could not be put together after being pulled apart by the inability to achieve "the same degree of surface contact or of surface congruency that existed before I broke them the filaments apart."

Defendant, in its brief, contends that this "breaking experiment" proves the defendant's position, i.e., that Dr. Peters "could only break . . . the strand into three coalesced bundles . . .. Rather than separating the spandex fiber at issue . . . Dr. Peters . . . caused the fiber to rupture, precluding any concept of mere separation of separate fibers."

Dr. Samuel J. Golub, an expert witness called by plaintiff, specializes in fiber analysis, research in fabric defects, and related textile studies. He holds...