CLA-2 RR:TC:TE 958133 NLP
Port Director
United States Customs Service
10 Causeway Street
Boston MA 02222-1059
RE: Protest No. 0401-95-100203; boiled wool; subheadings 5101.30.4000, 5103.20.0000; Explanatory Notes to heading 5103; Items 307.18 and 307.30, TSUS
Dear Sir:
This is a decision on application for further review of protest no. 0401-95-100203, filed on March 16, 1995, by Elco Freight Int'l, on behalf of Calvin B, Geary, Inc., against the [former] District Director's decision concerning the classification of boiled wool under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The merchandise at issue is boiled wool and a sample was sent to the Customs laboratory for analysis. The lab report issued indicated the following:
The sample is a bag of degreased, carbonized wool fibers which have
not been carded or combed. The wool fibers have been removed from
the hides of slaughtered sheep by either a lime, depilatory or sweating process
(skin wool or pulled wool).
Based on this report, the Boston District classified the subject article as carbonized wool in subheading 5101.30.4000, HTSUS, which provides for "Wool, not carded or combed: Carbonized: Not processed in any manner beyond the carbonized condition: Other."
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During the course of the liquidation and protest process, the supplier and the protestant continued to insist that the wool had not been carbonized, that it had not been subject to any lime or depilatory process, and that sulphuric acid was used only to
remove the skin, not to "carbonize" or remove vegetable matter. Therefore, it is the importer's position that the boiled wool should be classified as waste in subheading 5103.20.0000, HTSUS, which provides for "Waste of wool or of fine or coarse animal hair, including yarn waste but excluding garnetted stock: Other waste of wool or of fine animal hair."
The importer provided additional details of the wool production process in order to support this claim, which is as follows:
The process uses Australian sheepskins which come from sheep killed either at abattoir or butcher. They are then either air dried or salted, broken up through an opening machine and fed through a 3 inch scour for initial washing or shrinking. The
skins are then placed in pits for aerating. They are kept at a constant temperature for
a period of between seven and ten days. During this time, bacteria, and some sulphuric acid, eliminate the skin, leaving the wool intact. The product is then taken from the pits, washed again, dried and packed for export.
At no stage is any line or depilatory product used in this process.
Moreover, the importer provided both a Declaration and Certificate from the Commonwealth of Australia and a sales contract that describe the wool as Australian boiled wool, type CF21.
In view of this, the Customs laboratory re-tested the material which they had originally tested. In the second report, dated July 19, 1995, the laboratory indicated:
The sample is a bag of degreased, wool fibers which have not been
carded or combed. The wool fibers have been removed from the hides
of slaughtered sheep by either a lime, depilatory or sweating process (skin wool or pulled wool). in our opinion, the wool has not been carbonized and is not waste of wool.
ISSUES:
Is the boiled wool at issue carbonized?
Is the boiled wool at issue classifiable as waste under the HTSUS?
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LAW AND ANALYSIS:
ISSUE #1
In view of the revised laboratory report, as discussed in the fact section above, it is our position that the wool has not been carbonized and classification of this item in subheading 5101.30.4000, HTSUS, is incorrect. Therefore, the next issue to be discussed is the proper classification of the boiled wool.
ISSUE #2
Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI), taken in order. GRI 1 requires that classification be determined according to the terms of the headings and any relative section or chapter
notes, taken in order. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRI will be applied, in the order of their appearance.
In support of their claim that this boiled wool should be classified as "waste", the protestant stated that in the 1960's a ruling was made to classify boiled wool as a wool waste under Tariff Schedules of the United States (TSUS) item 307.30. They were unable to provide a copy of, or a reference to, this ruling. However, we believe the protestant is referring to Treasury Decision (T.D.) 69-196, dated August 21, 1969.
T.D. 69-196 ruled that fibers recovered from tanned-skin scrap by utilizing a sulfuric acid boil which dissolved the skin, if one inch or under, were classifiable under item 307.30, TSUS, which provided for "Flock, fibers recovered from tanned-skin scrap, and fibers cut to length, all the foregoing, of wool or hair, not spinnable." Such fibers which were over one inch in length were classifiable under item 307.18, TSUS, which provided for "Waste of wool or hair and advanced waste of wool or hair: Other." Fibers recovered from raw skin scrap by means of a sulfuric acid boil which dissolved the skin were also classifiable in item 307.18, TSUS. This type of fiber was considered "advanced waste" under the TSUS. See Schedule 3, Part 1, Headnote 1(a) and (b), TSUS, which define the terms "waste" and "advanced waste".
We do not believe the above T.D. should be extended in any way to the classification of the subject boiled wool under the HTSUS. First, TSUS item 307.30 has no counterpart in the HTS as there is no separate provision for wool that is recovered from tanned-skin scrap. Moreover, the waste provision in heading 5103, HTSUS, is more limited than that of item 307.18, TSUS, in that it does not include "advanced waste". In fact, there is no provision for "advanced waste" in the HTSUS.
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The HTS waste provision is also different in that, with the corresponding Harmonized Commodity Description and Coding System Explanatory Notes (ENs), the concept of waste is much more fully defined than under the TSUS.System. Customs believes the notes should always be consulted. See T.D. 89-80. According to the EN for heading 5103: The ENs constitute the Customs Cooperation Council's official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the
In general this heading covers all waste (other than garnetted stock) of wool or of fine or coarse animal hair, i.e., the waste recovered during the successive treatments converting the raw wool or hair into washed, carded, combed, spun,
woven, knitted, etc., products.
The principal wastes included here are:
(1) Wastes from combing, carding or other processes preparatory to spinning, such as: noils, the most important waste, composed of short fibres removed during combing; lap and sliver ends, small waste pieces of the combed lap; burr waste and carded shoddy, wastes collected during carding; fibres recovered on cleaning the rollers of carding machines and known as strippings.
(2) Yarn waste such as broken, knotted or tangled yarns collected as waste during spinning, doubling, reeling, weaving, knitting, etc. operations.
(3) Wastes such as sorting wastes and washing wastes collected from the bottom of the vat or from the gratings of washers.
(4) Waste, such as old mattress hair and wool.
Under the HTS, then, waste can be a byproduct of any one of a number of textile processes, but it clearly does not include waste materials that have been recovered from other waste materials (such as from scrap pieces of sheepskin). We also note that the fact that the product was recovered from scrap does not mean that it is scrap or waste material. See, Headquarters Ruling Letter 951835, dated August 19, 1992, wherein Customs classified rope that was made of scrap magnetic tape as rope rather than as waste or scrap.
Therefore, as the subject item would have been classifiable as advanced waste under TSUS item 307.18 and there is no counterpart provision for this in the HTSUS and the wool does not appear to be within the definition of waste as discussed in the above ENs, it must be classified in the most appropriate provision of heading 5101, HTSUS, as wool, not
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carded or combed. Accordingly, the boiled wool is classifiable in subheading 5101.29.4060, HTSUS, which provides for " Wool, not carded or combed: Degreased, not carbonized: Other: Not processed in any manner beyond the degreased condition: Other: Finer than 58s."
HOLDING:
The boiled wool is classifiable in subheading 5101.29.4060, HTSUS, which provides for "Wool, not carded or combed: Degreased, not carbonized: Other: Not processed in any manner beyond the degreased condition: Other: Finer than 58s." The rate of duty is 23.7 cents/ clean kg. As the rate of duty for the classifcation we find applicable is less than the rate for the liquidated classification, but more than the rate for the claimed classification, you are instructed to deny the protest, except to the extent reclassification of the merchandise as indicated above results in a partial allowance. A copy of this ruling should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action.
In accordance with Section 3A(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 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 the ACS and the public via the Diskette Subscription Service, Lexis, Freedom of Information Act and other public access channels.
Sincerely,
John Durant, Director
Tariff Classification Appeals Division