CLA-2 OT:RR:CTF:TCM H202560 CkG
TARIFF NO: 5402.47.90
Mr. John M. Peterson
Neville Peterson, LLP
17 State Street 19th Floor
New York, NY 10004
RE: Revocation of New York Ruling Letter N187601; yarn
Dear Mr. Peterson:
This is in reference to New York Ruling Letter N187601, issued to Ms. Margaret Polito on behalf of Best Key Textiles, Limited (Best Key), on October 25, 2011. We have reconsidered this ruling and find that the classification of the polyester filament yarn at issue as metalized yarn of heading 5605, Harmonized Tariff Schedule of the United States (HTSUS), was in error.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as
amended by section 623 of Title VI, notice proposing to revoke NY N187601
was published on April 24, 2013, in Volume 47, Number 18, of the Customs Bulletin.
Two comments were received in opposition to this Notice. Responses to those comments relevant to the substantive classification issue are incorporated in the Law and Analysis section of this decision.
FACTS:
NY N187601 described the subject merchandise as follows:
two spools of…polyester filament yarn, one of which you state is combined with aluminum powder and the other, zinc powder. Both, you state, contain titanium. You state that the aluminum or zinc powder is added to the slurry that is extruded to create the filaments.
You state that Best Key produces two products. The first is an 80 denier polyester yarn claimed to contain 1900 ppm of aluminum distributed evenly throughout the polyester matrix, with an unspecified amount of titanium dioxide also added as a delusterant. You state that the total presence of metal in the yarn (aluminum, titanium and zinc) accounts for about 0.7% of the total yarn weight. The second product is a 79.6 denier polyester yarn stated to contain 2800 ppm of zinc distributed evenly throughout the polyester matrix with an unspecified amount of titanium dioxide also added as a delusterant. The total presence of metal in the yarn (zinc, titanium and aluminum) is stated to account for about 0.74% of the total yarn weight. However, we note that the CBP Laboratory in New York tested several samples of entries of Best Key garments made from the instant yarns with different results. The highest level of metal present in the samples analyzed by the CBP Laboratory shows titanium in an amount of 1608 parts per million and aluminum in the amount of 741 ppm, for a total metal content of 0.002% (by volume). We also note that the garment tags and labels simply stated that the garments were made of “100% polyester” and made no mention of any metal content.
The production process of Best Key’s polyester yarns is stated to begin with the drawing of polyester yarn. The extruded polyester yarn is broken up into chips and melted to produce a polyester slurry. At this point, aluminum or zinc in powder form is added to the slurry, and, as stated above, titanium dioxide is added as a delusterant. The polymer mixture is then forced through a spinneret, which yields yarns of the desired thickness. Due to the small amount of metal in the yarn, the presence of the metal is not discernible to the naked eye.
ISSUE:
Whether the subject yarns are classified in heading 5605, HTSUS, as metalized yarn, or heading 5402, HTSUS, as synthetic filament yarn.
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the remaining GRIs 2 through 6. GRI 6, HTSUS, requires that the GRI's be applied at the subheading level on the understanding that only subheadings at the same level are comparable. The GRI's apply in the same manner when comparing subheadings within a heading.
The HTSUS provisions under consideration are as follows:
5402: Synthetic filament yarn (other than sewing thread), not put up for retail sale, including
synthetic monofilament of less than 67 decitex:
5402.47: Other, of polyesters:
5402.47.90: Other. . .
* * * * *
5605: Metalized yarn, whether or not gimped, being textile yarn, or strip or the like of
heading 5404 or 5405, combined with metal in the form of thread, strip or powder or covered with metal:
5605.00.90: Other…
* * * * *
The Harmonized Commodity Description and Coding System Explanatory Notes ("EN") constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).
The EN to heading 5605, HTSUS, provides as follows:
This heading covers :
Yarn consisting of any textile material (including monofilament, strip and the like and paper yarn) combined with metal thread or strip, whether obtained by a process of twisting, cabling or by gimping, whatever the proportion of the metal present. The gimped yarns are obtained by wrapping metal thread or strip spirally round the textile core which does not twist with the metal. Precious metals or plated metals are frequently used.
Yarn of any textile material (including monofilament, strip and the like,
and paper yarn) covered with metal by any other process. This category
includes yarn covered with metal by electro deposition, or by giving it a
coating of adhesive (e.g., gelatin) and then sprinkling it with metal powder
(e.g., aluminium or bronze).
The heading also covers products consisting of a core of metal foil (generally of aluminium), or of a core of plastic film coated with metal dust, sandwiched by means of an adhesive between two layers of plastic film.
The heading covers multiple (folded) or cabled yarn containing plies of the yarn referred to above (e.g., fancy cords as used by confectioners, obtained by twisting together two or more metallised yarns as described above). It further includes certain other forms of yarn made in the same way and used for similar purposes, consisting of two or more parallel metallised yarns held together with a binding of metal thread or strip, and yarn or bundles of yarn gimped with yarn of this heading.
Metallised yarn may be gimped. It is used in the manufacture of trimmings and lace and of certain fabrics, as fancy cords, etc.
The heading does not include :
Yarn composed of a mixture of textile materials and metal fibres conferring
on them an antistatic effect (Chapters 50 to 55, as the case may be)
(b) Yarn reinforced with metal thread (heading 56.07).
(c) Cords, galloons or other articles having the character of ornamental
trimmings (heading 58.08).
(d) Wire or strip of gold, silver, copper, aluminium or other metals (Sections XIV
and XV).
* * * * *
In NY N187601, CBP classified a polyester filament yarn, manufactured by Best Key via the introduction of aluminum or zinc powder into a polyester slurry, in heading 5605, HTSUS, as metalized yarn.
You argue that notwithstanding the extremely minute amount of metal present in the yarn, and the fact that the process of manufacture for the instant yarn is not described in the explanatory notes, that the yarn satisfies the terms of the heading text to heading 5605, HTSUS. You state that there is no minimum amount of metal needed to constitute a metalized yarn of heading 5605, and that the process of manufacture is irrelevant to the classification of the product.
We agree that it is the nature of the product rather than the process of manufacture which is the key consideration in determining whether the product is classifiable in heading 5605. Thus, whether the instant product is a metalized yarn depends on the meaning of that term as used in heading 5605. The term “metalized yarn” is defined in heading 5605, HTSUS as “being textile yarn, or strip or the like of
heading 5404 or 5405, combined with metal in the form of thread, strip or powder or covered with metal.” The instant product is not a textile yarn or strip combined with metal powder. The yarn itself contains metal, but it was not combined with metal in any way; the polyester slurry was combined with metal prior to the spinning of the yarn. Whether a polyester slurry falls within the meaning of “or the like” is unclear from the legal text alone. The Explanatory Notes to heading 5605, HTSUS, however, provide some guidance as to the scope of the heading.
The ENs to heading 5605, HTSUS, clearly contemplate that not every product combining yarn and metal in some fashion will be considered a metalized yarn for tariff purposes. The ENs specifically describe two types of products covered by heading 5605, HTSUS: 1) Yarn consisting of any textile material (including monofilament, strip and the like and paper yarn) combined with metal thread or strip, and 2) Yarn of any textile material (including monofilament, strip and the like, and paper yarn) covered with metal by any other process. The ENs further emphasize that metalized yarn of heading 5605 is used for decorative purposes, for example “in the manufacture of trimmings and lace and of certain fabrics, as fancy cords, etc.”. The ENs specifically exclude yarns composed of a mixture of textile materials and metal fibres, and yarns reinforced with metal thread from classification in heading 5605, HTSUS. Thus, while heading 5605 may allow for new methods of production of metalized yarn, the mere presence of metal in the yarn does not automatically result in classification in heading 5605, HTSUS.
The description of “metalized yarn” in the EN to heading 5605, HTSUS, is also consistent with the common and commercial meaning of the term. When a tariff term is not defined in either the HTSUS or its legislative history, or its meaning is unclear, ‘the term’s correct meaning is its common meaning.’ ’’ Rocknel Fastener, Inc. v. United States, 267 F.3d 1354, 1356 (Fed. Cir. 2001)(quoting Mita Copystar Am. v. United States, 21 F.3d 1079, 1082(Fed. Cir. 1994)); see also Smith v. United States, 508 U.S. 223, 228 (1993) (‘‘When a word is not defined by statute, we normally construe it in accord with its ordinary or natural meaning.’’). In ascertaining the meaning of undefined terms, ‘‘the court may rely upon its own understanding, dictionaries and other reliable sources.’’ Medline Indus., Inc. v. United States, 62 F.3d 1407, 1409 (Fed. Cir. 1995); see also Brookside Veneers, Ltd. v. United States, 847 F.2d 786, 789 (Fed. Cir. 1988) (‘‘To assist it in ascertaining the common meaning of a tariff term, the court may . . . consult lexicographic and scientific authorities, dictionaries, and other reliable information sources.’’).
CBP may examine dictionaries and other lexicographic materials to determine the common meaning of the term “metalized yarn”. See, e.g., Lonza, Inc. v. United States, 46 F.3d 1098 (Fed. Cir. 1995). The term in question is then construed in accordance with its common and commercial meanings, which are presumed to be the same. See, e.g., Nippon Kogasku (USA), Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982); Toyota Motor Sales, Inc. v. United States, 7 C.I.T. 178 (Ct. Int’l Trade 1984); Carl Zeiss, Inc. v. United States, 195 F.3d 1375 (Fed. Cir. 1999); Lonza, 46 F.3d 1098.
Our research and consultation of industry sources confirm that the commercial meaning of “metalized yarn” does not encompass every possible form of yarn with metal added. Instead, “metalized yarn” and similar terms such as “metallic yarn” and “metallic fiber” have a specific meaning, consistent with the Explanatory Note to heading 5605, which does not encompass the Best Key yarns at issue. Therefore, the instant product is not within the scope of the term “metalized yarns” as understood by the common and commercial meaning of the term.
The common and commercial meaning of the term indicate that “metalized yarn” is commonly understood to mean either a pre-existing yarn consisting of any textile material combined with metal, or a plastic film deposited with metal and slit into yarn, generally used for a decorative purpose. For example, FTC regulations define “metallic” fiber as “A manufactured fiber composed of metal, plastic-coated metal, metal-coated plastic, or a core completely covered by metal.” See Section 303.7 of the Rules and Regulations Under the Textile Fiber Products Identification Act (Generic names and definitions for manufactured fibers), 16 CFR § 303.7. CBP also consulted numerous technical sources on metallic yarns and fibers, none of which referenced a product such as that at issue in their discussion of metalized yarn. Indeed, no reference material on textiles was found in our research which described similar products as metalized yarns. Rather, technical sources on metalized yarn noted that metallic yarns consist of pre-existing yarn or plastic film bonded to metal, as do producers of metalized yarns such as Huntingdon Yard Mill (http://www.hymill.com/usa/?page_id=2), SwicoFil (http://www.swicofil.com/metallicyarn.html), Bally Ribbon Mill (http://www.ballyribbon.com/fibers/performance/metalized-yarns) and Metlon (http://www.metlon.com/metallic.htm). For example, J.J. Pizzuto’s Fabric Science defines “metallic” fiber as “a manufactured fiber composed of metal, plastic-coated metal, metal-coated plastic, or a core completely covered by metal…metallic fibers are used primarily for decorative effects, although when placed in carpeting (as little as 2 percent) the functional effect is to lessen the accumulation of static.” Joseph J. Pizzuto et al. ed, J.J. Pizzuto’s Fabric Science, 56 (10th ed. 2012). “Metallic Fibers” by Anita A. Desai, an Assistant Professor at the Sarvajanik College of Engineering & Technology, Textile Technology Department, similarly defines a metallic yarn as “a continuous flat monofilament produced by a combination of plastic film and metallic component so that the metallic component is protected.” See http://www.fibre2fashion.com/industry-article/3/213/metallic-fibres1.asp (2007). The International Bureau for the Standardization of Man-Made Fibres further notes that “metalized” yarns are yarns coated with metal. Terminology of Man-Made Fibres, Int’l Bur. for the Standardization of Man-Made Fibres (2009), available at http://www.bisfa.org/Portals/BISFA/Terminology/ BISFA%20Terminology2009%20% 28final%20version%29.pdf. See also G. Mohan Kumar, V. S. Sidharth Metallic Yarns and Fibres in Textile, Department Of Textile Technology, Bannari Amman Institute of Technology (2011); Irfan Ahmed Shaikh, Pocket Textile Expert 1st Edition; Virginia Hencken Elsasser, Textiles: Concepts and Principles, (2nd ed 2010); Allen C. Cohen Beyond Basic Textiles (1997); Jacqueline P. Kraschwitz, Polymers: Fibers and Textiles, a Compendium(1990).
Furthermore, many technical definitions of “metallic” yarns or fibers stress that they are used primarily for decorative purposes. See e.g., J.J. Pizzuto’s Fabric Science, supra, at 81 (“Metallic yarns are mostly used for decorative rather than functional purposes.”); Polymers: Fibers and Textiles, a Compendium, supra (“Such metallic yarns are used primarily for decorative purposes.”); “Metallic Fibers”, supra. A typical metalized yarn or fabric thus has a distinctive metallic appearance (hence its popularity for decorative applications). However, the instant yarns look and feel like a standard polyester fiber, as does the resulting fabric. The presence of metal is not discernible except by laboratory testing. Indeed, the Best Key garments made from this yarn are stated to be made from “100% polyester fiber” with no mention of the added metal.
Similarly, textile industry experts consulted by CBP from the American Fiber Manufacturers Association and the National Council of Textile Organizations were in agreement that the textile industry considers a metalized yarn to be either a textile yarn covered or coated with metal, or a plastic film deposited with metal and slit into yarn. This is consistent with what CBP has classified in heading 5605 in the past, and consistent with the Explanatory Notes to heading 5605, HTSUS. Thus, we conclude that the term “metalized yarn” as commonly and commercially understood, is a manufactured fiber composed of metal, plastic-coated metal, metal-coated plastic, or a core completely covered by metal, including metal sandwiched between layers of plastic, as in Lurex yarns, having a visible metallic effect or appearance.
In your comments responding to the proposed revocation, you submit an affidavit from Ingrid Johnson, editor of the Fairchild’s Dictionary of Fashion. Ms. Johnson affirms that the Best Key yarns at issue are, in her opinion, metalized yarns, within the following definition of metallic yarn (to be published in the upcoming 8th edition of the Fairchild’s Dictionary of Fashion):
“most present day versions of metallic yarn are forms of slit plastic films combined with either sheet aluminum or metallic particles. Originally these were made by sandwiching aluminum foil between two layers of cellulose acetate or cellulose acetate butyrate film with coloring material in the adhesive. While the form of yarn made from narrow strips of this material continues in the market, there are a number of other versions. Polyester film is stronger than the acetate and makes it possible to use thinner gauges of film. All of these yarns are available in a variety of thicknesses and widths as well as in staple form for spinning with other fibers.”
We note that this definition of metallic yarn is completely consistent with those cited above. It does not reference any method of production similar to that used by Best Key; it also clearly states that most versions of metallic yarn are produced from slit plastic films combined with aluminum. Although this definition allows for the possibility of other combinations of textile and metal, not specifically mentioned, being considered metallic yarn, it does not state that any textile yarn containing metal must automatically be considered a metallic yarn. Hence, whether this definition is intended to include such products or not, we do not believe that it supports the argument that the instant Best Key yarns should be considered metalized yarns. Such an interpretation would be far more expansive than the plain text of the heading, the ENs or the technical definitions would support. Indeed, it is difficult to imagine what wouldn’t fall within the scope of metalized yarn based on such a reading. For example, the Fairchild’s definition does not explicitly exclude either antistatic yarns, or yarns reinforced with metal thread, and yet the EN to heading 5605 excludes both of these from the heading. Ms. Johnson offers Angelina® fibers as an example of a metalized yarn which, in her view, is similar to the Best Key yarn in that the metal is not fully apparent. However, Angelina® fibers do have a distinctive and notable metallic, luminescent sheen. See e.g., https://www.google.com/search?q=angelina+fibers&client=firefox-a&hs=9r4&rls=org. mozilla:en-US:official&source=lnms&tbm=isch&sa=X&ei=ZEUqUry-LPao4APyh4DoBA&ved=0CAkQ_AUoAQ&biw=988&bih=614; http://www.texturatrading.com/angelina.html; http://www.meadowbrookglitter.com/angelina/pdf/knitting_intl.pdf.
Ingrid Johnson’s affidavit affirms that in a metalized yarn, the metal is added for a specific purpose, to add desirable characteristics to a fabric such as a metallic appearance, anti-microbial properties, or UV protection. Specifically, Ingrid Johnson states that “While in some applications, metal is added to create a shiny appearance, this is not a requirement for metalized yarn. …This is increasingly the case as nano-metals are added to fibers to impart a variety of practical, non-visual properties.” You claim that the aluminum and zinc are added to the Best Key yarns for anti-microbial purposes. Assuming that yarns metalized for a specific, practical, non-decorative purpose are within the scope of heading 5605 (although the emphasis in the Explanatory Notes on the decorative use of metalized yarns, as well as the specific exclusion of yarns with antistatic effects from heading 5605, imply otherwise) you do not present any evidence that the aluminum or zinc added to the instant yarns impart any anti-microbial properties or UV protection to the fiber, or even that they could have such an effect in such low concentrations. In support of the claim that metals impart anti-microbial or UV protection properties to the fiber, you cite an article from Textile Review Magazine, which details the various applications of nanometals in textiles. See SS. Chinchwade and Maneet Srivastava, Application of Nanometals in Textiles, Part 1, Textile Review Magazine (April 2012), reprinted at www.technicaltextile.net. This article lists the applications of various metals and compounds, including zinc oxide, aluminum trioxide, silver and titanium dioxide. Titanium dioxide and zinc oxide are stated to provide UV protection, aluminum trioxide is used for water-repellent finishing, and silver is used for anti-bacterial finishing. The article does not support the use of either aluminum or zinc for anti-microbial applications, or aluminum for UV protection. Our research indicates that silver, copper and copper alloys are the most common and effective metals used for antimicrobial applications. The Best Key garments made from the instant yarns examined by CBP also made no mention of any antimicrobial properties (or any reference to the metal content at all) on the garment tags or labels. Claims of anti-microbial properties are also subject to FDA and EPA regulation and verification; to our knowledge, neither aluminum nor zinc in any form are registered with the EPA as anti-microbial pesticides. See e.g., http://www.epa.gov/oppad001/. In any case, adding metal before extrusion, for antimicrobial, antistatic or other purposes, is not itself a new procedure. Heretofore, such products have not been considered metalized yarns. See, e.g., http://www.noblebiomaterials.com/category.asp?itemid=380; http://www.trevira.com/en/textiles-made-from-trevira/antimicrobial-textiles/how-trevira-bioactive-works.html; http://www.cloverbrook.com/MerylSkinlifePage.htm.
In your comments in response to the proposed revocation, you cite to various CBP rulings which you claim classified yarns having no metallic appearance in heading 5605, HTSUS. These include: NY N062518, dated June 3, 2009; NY L82752, dated March 10, 2005; NY R00713, dated August 23, 2004; NY J84177, dated September 17, 2003; NY J82793, dated April 9, 2003 (revoked by HQ 967829, dated February 27, 2006); NY I80137. dated April 9, 2002; NY J84274, dated May 6, 2000; NY B89128, dated September 3, 1997; NY B89130, dated September 3, 1997; and NY A89028, dated November 7, 1996. We note that in each of the cases cited above, the yarns are either described as “decorative” or “metallic”, or are used in decorative applications such as decorating packages (NY N062518, NY R00713).
In summary, the Best Key yarns do not conform to any common or commercial meaning of metalized or metallic yarn, because the products that are considered metalized yarns or fibers consist of a textile yarn covered or coated with metal, or a plastic film deposited with metal and slit into yarn, having a metallic character of appearance which is usually the result of the presence of a significantly higher metal content than the instant products.
Finally, we note that while CBP does not impose a strict requirement with respect to the amount of metal that must be present in order for a yarn to be considered metalized, tests conducted by the CBP Laboratory indicate that the samples of Best Key’s yarns submitted for analysis contain only trace amounts of metal. The highest level of metal present in the samples analyzed shows titanium in the amount of 1608 parts per million and aluminum in the amount of 741 ppm. These results indicate that the subject yarns contain at most .002% metal by volume. Even assuming that 1900 ppm aluminum and 2800 ppm of zinc are present in the instant yarns, as stated by the importer, the amount of aluminum or zinc by volume would still only amount to roughly .002%, or 0.7% by weight. In contrast, a yarn that is 1% metal by volume has 100,000 ppm. Given that many products and preparations used in textiles, such as those of heading 3809, contain metallic substances, and even natural fibers may naturally contain trace amounts of metal absorbed from the soil, many yarns may consequently have traces of metal simply as a result of common treatments such as dye fixing or delustring. To classify any fiber with as little metal as is present in the instant yarn in heading 5605 would expand the heading far beyond its current scope, to include any yarns which contain trace amounts of metal as a byproduct of common textile treatments and which have never been considered metalized yarn. As noted above, by contrast, the products recognized as metalized yarns in the textile industry have much higher concentrations of metal, with the result that the metal is immediately apparent.
HOLDING:
The Best Key yarn is classified in heading 5402, HTSUS, specifically subheading 5402.47.90, HTSUS, which provides for “Synthetic filament yarn (other than sewing thread), not put up for retail sale, including synthetic monofilament of less than 67 decitex: Other, of polyesters: Other.” The 2013 column one, general rate of duty is 8% ad valorem.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided online at www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY N187601, dated October 25, 2011, is hereby revoked.
In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after publication in the CUSTOMS BULLETIN.
Sincerely,
Myles B. Harmon, Director,
Commercial and Trade Facilitation Division