CLA-2 RR:TC:TE 958674 CAB
Edward Ackerman, Esquire
Coopers & Lybrand, L.L.P.
1301 Avenue of the Americas
New York, NY 10019-6013
RE: Classification of a weaving beam with yarn; Heading 5609;
Chapters, 52,54,55, HTSUSA; Eligibility of certain beams
designated as Instruments of International Traffic (IIT's)
Dear Mr. Ackerman:
This is response to your request for a tariff classification
for certain merchandise under the Harmonized Tariff Schedule of
the United States Annotated (HTSUSA) on behalf of Beckaert
Textiles USA, Inc. Initially you requested a country of origin
determination for the subject goods, however you have since
withdrawn the country of origin request.
FACTS:
The subject merchandise is various types of yarn put up on
beams. A beam is a large cylinder on which a number of yarns are
wound in preparation for weaving. You describe the merchandise
at issue as a blank weaving beam which consists of metal tubes
approximately 8.6 feet long and each beam weighs approximately
100kg. Yarns that are wound on a beam (also known as a "warp
beam" or a "weaving beam") are parallel to each other, and are
aligned so that they are ready to feed into a weaving machine
where they will become the warp yarns, (yarns that run
lengthwise) in a woven fabric. You state that the weaving beams
are used exclusively in the Bekaert production process and are
bought and sold and are known in the textile industry as "weaving
beams". You also state that the subject merchandise is not
suitable for any other use except as a Bekaert weaving beam which
is used to make mattress ticking. Finally, you state that the
weaving beam is a holder which contains yarns of either man-made
fibers or cotton and is repeatedly used in international traffic.
ISSUE:
I. Whether the weaving beams are classifiable as articles of
yarn under Heading 5609, HTSUSA, or as various types of yarn in
Chapters 52, 54, and 55, HTSUSA?
II. Whether the weaving beams may be treated as instruments of
international traffic within the meaning of 19 USC 1322(a) and
section 10.41a, Customs Regulations?
LAW AND ANALYSIS:
TARIFF CLASSIFICATION
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRI's). GRI 1 provides that
classification shall be determined according to the terms of the
headings and any relative section or chapter notes. Merchandise
that cannot be classified in accordance with GRI 1 is to be
classified in accordance with subsequent GRI's taken in order.
The issue is whether these yarns put up on beams should be
classified as articles of yarn under Heading 5609, HTSUSA, or
whether these yarns should be classified as yarn under Chapters
52, 54, or 55, HTSUSA, depending on the specific type of yarn.
Heading 5609, HTSUSA, is the provision for articles of yarn,
strip or the like of heading 5404 or 5405, twine, cordage, rope
or cables, not elsewhere specified or included. The Explanatory
Notes to the Harmonized Commodity Description and Coding System
(EN), although not legally binding, are the official
interpretation of the nomenclature at the international level.
The EN to Heading 5609, HTSUSA, provides the following:
This heading covers articles of the yarns of Chapters
50 to 55, articles of strip or the like of heading 54.04 or
54.05, and also articles of
twine, cordage, rope or cables
of heading 56.07, other than
those covered by a more
specific heading in the
Nomenclature.
It includes yarns, cordage, rope, etc., cut to length
and looped at one or both ends, or fitted with tags, rings,
hooks, etc., (e.g., shoe laces, clothes lines, towing
ropes), ships' fenders, unloading cushions, rope ladders,
lading slings, dish "cloths" made of a bundle of yarns
folded in two and bound together at the folded end, etc.
You state that in Belgium yarn is wound off bobbins by a
warping machine onto warping beams. The beams are put into
autoclaves and are bleached, dyed, and rinsed. After warp beam
processing, the yarns are sized. You further state:
The merchandise in question is an intermediate article known
in the industry as a weaving beam. It is after the
processing in Belgium, that the product is discernible as an
individual, intermediate article due to the significant
advancement which occurs during the Bekaert process.
Moreover...the yarns become dedicated to one very specific
use. Thus, the weaving beams are much more than mere
materials; indeed, these specialty weaving beams imported
into the United States have been so far advanced beyond the
stage of mere
materials (i.e., yarn) as to be dedicated to and
commercially fit only for a single use-mattress ticking.
Accordingly, the weaving beams are intermediate products
classifiable under heading 5609 of the HTS...
You also provide definitions for weaving beams from several
different lexicographic sources. These definitions include:
1. Calloway Textile Dictionary (Callaway Mills-La Grange,
GA, First Edition-1947)
Weaver's Beam - See Loom Beam
Loom Beam - a beam for holding warp yarn. In weaving,
it is located at the back of the loom and from it the ends
slowly unwind. Usually there is
one beam to a loom, but
sometimes there may be two or more.
2. The Modern Textile and Apparel Dictionary (Textile Book
Service, Fourth Edition- 1973)
Loom Beam - a beam to hold warp yarn. In weaving, it
is located at the back of the loom and from it the
ends slowly unwind.
3. Annual Book of ASTM Standards, Volume 07.01 (D123
Standard Terminology Relating to Textiles defines the
more generic term "beam" as follows:
Beam - a large spool containing many ends of yarn
wound parallel, and used for such purposes as weaving or
warp knitting.
You contend that the subject weaving beam is properly
classifiable under Heading 5609, HTSUSA, as articles of yarn.
Heading 5609, specifically provides for twine, cordage, rope, or
cables, not provided for elsewhere in the tariff. The EN provide
further exemplars that are properly classifiable under Heading
5609, HTSUSA. These exemplars include shoe laces, clothes lines,
towing ropes), ships' fenders, unloading cushions, rope ladders,
lading slings, and dish cloths. In Van Dale Industries v. United
States, Slip. Op. 94-54, (April 1, 1994), the court discussed
ejusdem generis, the rule for statutory construction. The court
noted:
One rule of statutory construction is ejusdem generis, which
means "of a kind, class, or nature." Black's Law Dictionary
464 (5th ed. 1979). This rule applies "whenever a doubt
arises as to whether a given article not specifically named
in the statute is to be placed in a class of which some of
the individual subjects are named." [United States v. Damrak
Trading Co., Inc., 43 CCPA 77,79, C.A.D. 611 (1956).] Under
ejusdem generis, where particular words of description are
followed by general terms, the latter will be regarded as
referring to things of a like class with those particularly
described. Id. In other words, ejusdem generis requires
that merchandise possess the particular characteristics or
purposes that unite the specified exemplars in order to be
classified under the general terms. See, Nissho-Iwasi Am.
Corp v. United States, 10 CIT 154, 157, 641 F. Supp. 808,
810 (1986)(citations omitted).
To apply ejusdem generis, Customs must determine whether the
subject weaving beam contains the shared characteristics of the
articles enumerated eo nomine in Heading 5609, HTSUSA. All of
the named articles in Heading 5609, HTSUSA, are made up articles
of various types that require no additional processing to
accomplish their intended purpose. The subject weaving beam, on
the other hand, is comprised of yarns put up on beams which
require further processing in order to result in a made up
article. As you state, "the merchandise in question is an
intermediate article", and Heading 5609, HTSUSA, provides for
finished made up articles and not "intermediate articles". Thus,
the subject weaving beam does not contain the shared
characteristics of the named articles. Consequently, the weaving
beam is not ejusdem generis with the eo nomine articles in
Heading 5609, HTSUSA, and is not classifiable under that heading.
Customs is of the opinion that the subject weaving beam has
the dual purpose of acting as a vessel or holder utilized in the
transport of yarn and as a weaving beam designed to be used with
certain textile weaving looms. However, with or without the
beam, the yarns wound on it do not lose their identity as "yarn".
In essence, you have a beam repeatedly used as a holder or
container and yarn. As the yarn has not lost its identity as
yarn, it warrants a separate classification. Consequently, the
various yarns wound around the subject weaving beams are
classifiable under Chapters 52, 54, 55, HTSUSA, depending on the
specific type of yarn.
INSTRUMENTS OF INTERNATIONAL TRAFFIC
Section 322(a), Tariff Act of 1930, as amended (19 USC
1322(a)), provides that "vehicles and other instruments of
international traffic, of any class specified by the Secretary of
treasury, shall be excepted from the application of the customs
laws to such extent and subject to such terms and conditions as
may be prescribed in regulations or instructions of the Secretary
of the Treasury...."
The Customs Regulations issued under the authority of
Section 322(a) are in Sections 10.41 and 10.41a (19 CFR 10.41 and
10.41a). Paragraph (a)(1) of Section 10.41a designates as
Instruments of International Traffic (IIT) lift vans, cargo vans,
shipping tanks and certain other named articles and states that
other articles may be designated as IIT by the Commissioner of
Customs in a decision to be published in the weekly Customs
Bulletin. Once designated as IIT's, these items may be released
without entry or the payment of duty, subject to the provisions
of 10.41a.
To qualify as an "instrument of international traffic"
within the meaning of 19 USC 1322(a) and the regulation
promulgated pursuant thereto (19 CFR 10.41a et. seq.), an article
must be used as a container or holder. The article must be
substantial, suitable for and capable of repeated use, and used
in significant numbers in international traffic. See, subheading
9803.00.50, HTSUSA, and former Headnote 6(b)(ii), Tariff
Schedules of the United States (TSUS), as well as Headquarters
Ruling Letters (HQs) 104766, dated August 22, 1988, 109665, dated
September 12, 1988, and 109702, dated September 30, 1988.
The concept of reuse contemplated above is for commercial
shipping or transportation purposes, and not incidental or
fugitive uses. See, Holly Stores, Inc. v. United States, 697
F.2d 1387 (Fed. Cir., 1982). In Holly Stores, the court
determined that "reuse" in the context of former General Headnote
6(b)(ii) "has been consistently interpreted to mean practical,
commercial reuse, not incidental reuse...." Subsequent Customs
Rulings on this matter have determined that single use is not
sufficient, reuse means more than twice. See, HQ 105567 and HQ
108658.
In HQ 112274, dated December 14, 1992, when faced with
whether certain beams used to hold yarn, in addition to harness
frames, reeds, and heddles, were used for the transportation of
yarn could be treated as instruments of international traffic,
Customs concluded the following:
We find that the beams, harness frames, reeds and heddles
under consideration are capable of being used as a holder,
that they are substantial, suitable for and capable of
repeated use, and that they will be used in significant
numbers in international traffic. We further find that the
beams, harness frames, reeds and heddles under consideration
are similar to holders designed to hold two or more pounds
of yarn or thread, made of wood, base metal, or plastic or a
combination thereof, known as spools, bobbins, cops, and
pins, used for the transportation of yarn and thread which
were designated as instruments of international traffic in
Treasury Decision 56563.
Accordingly, pursuant to 19 USC 1322(a) and Section 10.41a,
Customs Regulations, and the cited HQs, the subject weaving beam,
with or without the yarn, may be treated as an instrument of
international traffic.
The designation of a container or holder as an IIT becomes
effective only when used as such upon its arrival in this country
in foreign trade, either empty or with merchandise. If the
holder or container is brought into the country by a party other
than the one who is using it as an IIT, it is subject to entry as
imported merchandise. The principal on the IIT bond is the party
who is using the holder or container as an IIT.
HOLDING:
The subject weaving beam with or without the yarn qualifies
for treatment as an instrument of international traffic and may
be released under the procedures set forth in section 10.41a,
Customs Regulations.
The various types of yarns you describe in your submission
are classifiable in Chapters 52, 54, and 55, HTSUSA. The exact
subheadings cannot be determined in this ruling as you did not
provide Customs with samples or specific descriptions. It is
important to note that if the subject weaving beam is imported
with yarn wound around it, the yarn is subject to duty and quota
restraints.
.
Sincerely,
John Durant, Director
Tariff Classification Appeals
Division