CLA-2 OT:RR:CTF:TCM H140755 HvB
Port Director
Port of Memphis
U.S. Customs and Border Protection
3150 Tchulahoma Road, Suite 1
Memphis, TN 38118
Attn.: Eddie G. Griffin
RE: Billiard Table Fabric; Application for Further Review of Protest No. 2006-10-100545
Dear Port Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 2006-10-100545, timely filed on behalf of Olhausen Billiards Manufacturing, Inc. (Protestant), concerning the classification of certain woolen billiard cloth under the Harmonized Tariff Schedule of the United States (“HTSUS”). Our office reviewed the sample submitted to the port.
FACTS:
This protest concerns woven woolen fabric imported from AW Hainsworth & Sons, Ltd., of England. The “Elite Pro” fabric is made from 70% wool and 30% nylon and is designed to cover billiard tables, pool tables, and snooker tables. Protestant imports the fabric to fit 7’, 8’, 8 1/2’ or 9’ sized tables. The entries at issue consist of fabric of either 8’ or 9’ dimensions in various colors that are designed to fit either an 8’ or 9’ sized table. The importer states that they provide “cut to size” covers. As imported, the fabric is pre-cut into rectangles and rolled onto cardboard tubes. Also imported with the bed cloth is the rail cloth, which consists of strips of fabric for covering the table’s side rails. There are no notches or cuts in the fabric and the edges of the rectangles are unhemmed. At installation, no other cuts are required other than making a slit to stretch the cloth around the center pocket.
The “Elite Pro” cloth is manufactured for use at the tournament level. According to the invoice, the cloth is designed to provide a uniform speed of roll of a ball on the slate and meets the specifications of the Billiards Congress of America. The importer states that the fabric is pre-treated with Hainsworth dye protection to minimize burn from balls and to extend the life of the cloth. The importer also states that the fabric protection renders the cloth at issue unsuitable for any other purpose. The fabric is secured to the table bed with contact cement, and staples. As a final step, the technician bolts the top rails to the slate bed.
On July 15, 2010, Protestant entered the fabric under heading 9504.20.80, HTSUS, as “Articles for arcade, table or parlor games, including pinball machines, bagatelle, billiards and special tables for casino games; automatic bowling alley equipment; parts and accessories thereof: Articles and accessories for billiards of all kinds.” On August 3, 2010, U.S. Customs and Border Protection (CBP) reclassified and liquidated the merchandise under heading 5112.20.10, HTSUS which provides for “Woven fabrics of combed wool or of combed fine animal hair: Containing 85 percent or more by weight of wool or of fine animal hair: Other, mixed mainly or solely with man-made filaments: Tapestry fabrics and upholstery fabrics of a weight exceeding 300 g/m2 (414).” The rate of duty for this subheading under the 2010 HTSUS is 7% ad valorem.
Protestant filed the instant protest and AFR on September 13, 2010. Protestant avers that the subject fabric is classified under subheading 9504.20.80, HTSUS, as “parts” of billiard tables. The rate of duty for this subheading under the 2010 HTSUS is free.
ISSUE:
What is the correct tariff classification under the HTSUS of the “Elite Pro” billiard table fabric?
LAW AND ANALYSIS:
Initially, we note that the matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation for all involved entries (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).
Further Review of Protest No. 2006-10-100545 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(c) because the decision against which the Protest was alleged to involve involves matters previously ruled upon but facts are alleged which were not considered at the time of the original ruling. Specifically, Protestant submits that the fabric in question is pre-cut, pre-rolled, and suitable only for application upon billiard tables of 8 feet or 9 feet tables. Protestant asserts that the “fabric is not suitable for other use and is not brought in rolls or bolts as it was previously determined under New York Ruling Letter (NY) M84452,” dated July 18, 2006.
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRIs”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The 2010 HTSUS headings under consideration are:
5112 Woven fabrics of combed wool or of combed fine animal hair:
Containing 85 percent or more by weight of wool or of fine animal hair:
* * *
5112.20 Other, mixed mainly or solely with man-made filaments:
* * *
5112.20.10 Tapestry fabrics and upholstery fabrics of a weight
exceeding 300 g/m2 (414) ...
9504 Articles for arcade, table or parlor games, including pinball machines, bagatelle, billiards and special tables for casino games; automatic bowling alley equipment; parts and accessories thereof:
* * *
9504.20 Articles and accessories for billiards of all kinds:
* * *
9504.20.80 Other, including parts and accessories
* * * * *
The Notes to Section XI, HTSUS, which includes heading 5112, HTSUS, provide in relevant part as follows:
1. This section does not cover:
* * *
(t) Articles of Chapter 95 (for example toys, games, sports requisites and nets);
* * * * *
The Notes to Chapter 95, HTSUS, provide in relevant part as follows:
3. Subject to note 1 above [not applicable here], parts and accessories which are suitable for use solely or principally with articles of this chapter are to be classified with those articles.
* * * * *
At the outset, we discuss the applicability of Additional U.S. Rule of Interpretation (“AUSRI”) 1(c). It provides:
In the absence of special language or context which otherwise requires, a provision for parts of an article covers products solely or principally used as a part of such articles but a provision for ‘parts’ or ‘parts and accessories’ shall not prevail over a specific provision for such part or accessory.
Because Chapter 95, Note 3 constitutes the special language or context that otherwise requires, AUSRI 1(c) does not apply.
At issue is whether the instant cloth is classified in heading 5112, HTSUS, which provides for “woven fabrics of combed wool…” or, in heading 9504, HTSUS, as a part of a billiards table. Because Section Note 1(t) to Section XI excludes all articles of Chapter 95, we must first determine whether the instant fabric is classifiable in Chapter 95 before we determine the applicability of Chapter 51.
Pursuant to note 3/Chapter 95, the billiards fabric will be classified as parts of billiards tables if it constitutes “parts” within the meaning of the HTSUS. The courts have considered the nature of “parts” under the HTSUS and two distinct though not inconsistent tests have resulted. See Bauerhin Techs. Ltd. P’ship. v. United States (“Bauerhin”), 110 F. 3d 774 (Fed. Cir. 1997). The first, articulated in United States v. Willoughby Camera Stores, Inc. (“Willoughby Camera”), 21 C.C.P.A. 322, 324 (1933), requires a determination of whether the imported item is an “integral, constituent, or component part, without which the article to which it is to be joined, could not function as such article.” Bauerhin, 110 F.3d at 778 (quoting Willoughby Camera, 21 C.C.P.A. 322 at 324). The second, set forth in United States v. Pompeo, (“Pompeo”) 43 C.C.P.A. 9, 14 (1955), states that an “imported item dedicated solely for use with another article is a ‘part’ of that article within the meaning of the HTSUS.” Id. at 779 (citing Pompeo, 43 C.C.P.A. 9 at 13.) Under either line of cases, an imported item is not a part if it is “a separate and distinct commercial entity.” Id.
The Court of Appeals for the Federal Circuit directs us to apply Pompeo in the case where the article at issue is dedicated solely for use with the article and is not a commercially distinct entity. Bauherin, 110 F.3d at 779. Here, as discussed below, the article is dedicated solely for use with billiards tables and is not a commercially distinct identity. Therefore, Pompeo applies to the fabric at issue.
The fabric at issue meets the definition of parts under the HTSUS. The Protestant imports the fabric pre-cut in specific dimensions configured to fit an 8’ or 9’ table, depending on whether the fabric is 8’ or 9’; the fabric is designed such that, at installation, minimal cutting is needed. It is an essential component to the pool table. The fabric in question is therefore solely dedicated for use with the beds of pool and billiards table and is an integral to use of the pool table. Moreover, the fabric does not have a commercially distinct identity apart from the table to which it covers—the fabric is neither sold nor designed to be used independently, as the importer builds and sells customized tables to meet their customers’ specifications. The fabric is treated with dye protection prior to importation, also rendering the fabric unsuitable for other commercial uses; thus, it is irrevocably fabric for billiards table both before and after installation. We note our adherence to Note 3 to Chapter 95, as the fabric in question is a part that is “suitable for use solely or principally with articles of this chapter.” Accordingly, we need not discuss classification under chapter 51, in Section XI, HTSUS. See Note 1(t), Section XI. Based on the specific facts presented to us, we find that the instant fabric is a “part” of a billiards table and is classifiable in heading 9504, HTSUS as parts for billiards tables.
Protestant contends that the fabric in question is distinguishable from the 90 % combed wool cloth used in the manufacture of billiards tables that CBP classified in NY M84452 (July 18, 2006) in heading 5112, HTSUS. We agree. Unlike the fabric at issue, the fabric addressed in that ruling was imported in rolls in a variety of lengths for sale by the yard in retail stores, or “in the piece”. Here, the fabric is imported in pre-cut rectangles designed to fit specific lengths of tables, and not “in the piece”. In addition, the fabric at issue lacks lines of demarcation since it is already pre-cut and sized for an 8’ or 9’ table, obviating the need for lines of demarcation. As we have stated above, the fabric at issue appears to be unsuitable for any other use in the form it is imported.
The classification of the fabric at issue as parts of a billiard table is limited to the specific facts at hand. In Headquarters Ruling Letter (HQ) 956965, dated December 13, 1994, CBP classified certain billiard table fabric in heading 5111, HTSUS, as a woven fabric of carded wool. This ruling is distinguishable. The fabric in that ruling was imported in piece (in rolls or bolts) and in various sizes and shapes depending on the order, unlike the instant fabric. Because it was designed to accommodate different sized billiard tables and required additional working (e.g., processing and cutting to specification) to be used as billiard table bed cloth, we found that the identity of the fabric was not fixed with certainty. Therefore, at importation, unlike the fabric at issue, the fabric in HQ 956965 had other potential uses. See also HQ 086147, dated February 21, 1990 and HQ 088129, dated January 24, 1991 (in both cases, the fabric was imported in rolls in piece).
Finally, we note that this decision is consistent with NY K84899, dated April 26, 2004, in which we classified a custom-made billiard table cover cloth in heading 9504, HTSUS. In that ruling, we determined that “it will be printed with a customer’s specified design and it will be measured and cut to fit a specific billiard table. The cover is designed for installation onto the table requiring only the cutting of slits to allow the product to be folded to fit.” Similarly, the fabric at issue requires minimal cutting, if at all, to be used as a cloth for a billiard table.
HOLDING:
By application of GRI 1 (Note 3 to Chapter 95), the billiards table fabric is classified under heading 9504, HTSUS, specifically, in subheading 9504.20.80, HTSUS, as “Articles for arcade, table or parlor games, including pinball machines, bagatelle, billiards and special tables for casino games; automatic bowling alley equipment; parts and accessories thereof: Articles and accessories for billiards of all kinds: Other, including parts and accessories.” Under the 2010 HTSUS, these articles are duty-free.
You are instructed to ALLOW the Protest in full. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, 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 International Trade will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division