OT:RR:CTF:FTM H291579 JER
Sydney Mintzer
Mayer Brown, LLP
1999 K St., NW
Washington, DC 20006
RE: Revocation of NY N282623 (Tariff Classification of Textile Tubular Sleeves Used to Cover Electrical Wiring Harnesses); Revocation of NY N259736, NY N259746, NY N259737, and NY N259747
Dear Mr. Mintzer:
This is in response to your request of October 20, 2017, on behalf of your client Federal Mogul Corporation (“FMC”), for reconsideration of New York Ruling Letter (“NY”) N282623, issued on February 17, 2017, concerning the classification of certain merchandise under the Harmonized Tariff Schedule of the United States (“HTSUS”). In NY N282623, U.S. Customs and Border Protection (“CBP”) classified the imported tubular sleeve, known as the Twist-Tube, under heading 5806, HTSUS. In particular, the Twist-Tube was classified under subheading 5806.32.2000, HTSUSA, which provides for: “Narrow woven fabrics, other than goods of heading 5807; narrow woven fabrics consisting of warp without weft assembled by means of an adhesive (bolducs): Other woven fabrics: Of man-made fibers: Other.” It is your contention that heading 5806, HTSUS, is not the proper heading and that it does not describe the merchandise at issue. After reviewing NY N282623, we have found that ruling to be in error. For the reasons set forth in this ruling, we are revoking NY N282623.
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 (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed action was published on July 21, 2021, in Volume 55, Number 28, of the Customs Bulletin. No comments were received in response to this notice.
FACTS:
In NY N282623, CBP described the woven fabric as follows:
TwistTube®, standard color black (samples and literature provided are for style TwistTube® 2420), is a flexible narrow woven fabric, approximately five centimeters (cm) in width in the open flattened state, permanently rolled into an open tubular form, and said to be composed of polyester monofilament and multifilament yarns. These yarns measure under one millimeter (mm) in cross-section…[.] According to the literature provided, “TwistTube® 2420 is a self-wrapping sleeve designed to provide abrasion protection and acoustical noise suppression… [It] maintains a circular profile when flexed. Its self-wrapping design allows for quick and easy bundling of wire and cable assemblies. The unique design easily allows for breakouts and can be installed over completed assemblies.” Typical applications include instrument panel harnesses, engine compartment harnesses, and tubing, hose and cable assemblies, protecting them from chafing, cutting and abrasion. The product is available in a variety of sizes and lengths, with nominal inner diameter sizes ranging in size from 5 to 38 mm, and in bulk lengths or cut to specification.
In the submission dated October 20, 2017, you described the subject Twist-Tube as follows:
The Twist-Tube is woven of both monofilament and multifilament polyester yarns. The two yarns are combined together on a large spool called a beam using a machine called a warper. The beam is then transported to the loom (weaving machine). The monofilament yarn is introduced perpendicular to the multifilament yarn by the loom in the weaving process. It is produced as a flat woven textile fabric with multiple warp or weft; having a plain weave with dual fill and dual pick. The dual fill means there are two (multiple) weft yarns being inserted and interlacing with each individual warp yarn. The dual pick is a standard of narrow fabric weaving whereby each fill (weft) yarn is inserted back and forth across the fabric structure. Each warp yarn is interlaced by four ends of weft yarn. The finished tape (called feedstock) is collected and then run through a heating process to create a tube shape. The tube is then cut to length.
In a supplemental submission dated April 1, 2019, FCM provided photographs of the installed versions of the Twist-Tube, along with information pertaining to its installation. The April 1, 2019 submission along with the FMC website further described the Twist-Tube as being principally used to cover wiring assemblies in automobiles and light trucks. It is specifically designed as an original equipment manufacturer (“OEM”) certified part and is used by car manufacturers to satisfy National Highway Traffic Safety Administration (“NHTSA”) regulations governing flammability. The Twist-Tube is also said to have the capacity for heat prevention, and to also prevent abrasion while enhancing noise suppression.
CBP Lab Report NY20171862, dated February 2, 2018, described the subject merchandise as a narrow woven fabric with complete selveges on both edges (one woven selvege on one edge and one chain knit stich on the other edge). It was composed of two yarns (one polyester monofilament and one polyester multifilament) and measured 6.5 centimeters in width in the open flattened state.
ISSUE:
Whether the subject merchandise is a narrow woven fabric of heading 5806, HTSUS, or a textile fabric intended and designed for technical purposes and therefore classifiable under heading 5911, HTSUS.
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) is made in accordance with the General Rules of Interpretation (“GRI”). 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 may then be applied.
The HTSUS provisions under consideration are as follows:
5806 Narrow woven fabrics, other than those goods of heading 5807; narrow fabrics consisting of warp without weft assembled by means of an adhesive (bolducs):
Other woven fabrics:
5806.32 Of man-made fibers:
5806.32.2000 Other…
* * *
5911 Textile products and articles, for technical uses, specified in note 7 to this chapter:
* * *
5911.90.00 Other…
* * *
Section XI, Note 7 provides that:
7. For the purposes of this section, the expression “made up” means:
Cut otherwise than into squares or rectangles;
(b) Produced in the finished state, ready for use (or merely needing separation by cutting dividing threads) without sewing or other working (for example, certain dusters, towels, tablecloths, scarf squares, blankets);
(c) Cut to size and with at least one heat-sealed edge with a visibly tapered or compressed border and the other edges treated as described in any other subparagraph of this note, but excluding fabrics the cut edges of which have been prevented from unraveling by hot cutting or by other simple means;
(d) Hemmed or with rolled edges, or with a knotted fringe at any of the edges, but excluding fabrics the cut edges of which have been prevented from unraveling by whipping or by other simple means;
(f) Assembled by sewing, gumming or otherwise (other than piece goods consisting of two or more lengths of identical material joined end to end
and piece goods composed of two or more textiles assembled in layers, whether or not padded); or
(g) Knitted or crocheted to shape, whether presented as separate items or in the form of a number of items in the length.
Note 5(a) to Chapter 58 provides as follows:
For the purposes of heading 5806, the expression “narrow woven fabrics” means:
(a) Woven fabrics of a width not exceeding 30 cm, whether woven as such or cut from wider pieces, provided with selvages (woven, gummed or otherwise made) on both edges;
* * *
Note 1 to Chapter 59 provides as follows:
Except where the context otherwise requires, for purposes of this chapter the expression “textile fabrics” applies only to woven fabrics of chapters 50 to 55 and headings 5803 and 5806, the braids and ornamental trimmings in the piece of heading 5808 and the knitted or crocheted fabrics of headings 6002 to 6006.
Note 7 to Chapter 59 provides as follows:
Heading 5911 applies to the following goods, which do not fall in any other heading of section XI:
(a) Textile products in the piece, cut to length or simply cut to rectangular (including square) shape (other than those having the character of the products of headings 5908 to 5910), the following only:
(i) Textile fabrics, felt and felt-lined woven fabrics, coated, covered or laminated with rubber, leather or other material, of a kind used for card clothing, and similar fabrics of a kind used for other technical purposes;
(ii) Bolting cloth;
(iii) Straining cloth of a kind used in oil presses or the like, of textile material or of human hair;
(iv) Flat woven textile fabric with multiple warp or weft, whether or not felted, impregnated or coated, of a kind used in machinery or for other technical purposes;
(v) Textile fabric reinforced with metal, of a kind used for technical purposes;
(vi) Cords, braids and the like, whether or not coated, impregnated or reinforced with metal, of a kind used in industry as packing or lubricating materials;
(b) Textile articles (other than those of headings 5908 to 5910) of a kind used for technical purposes (for example, textile fabrics and felts, endless or fitted with linking devices, of a kind used in papermaking or similar machines (for example, for pulp or asbestos-cement), gaskets, washers, polishing discs and other machinery parts).
* * *
The Explanatory Notes (“ENs”) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff 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, 35128 (August 23, 1989).
EN 58.06(A) describes narrow woven fabric as follows:
Warp and weft fabrics in strips of a width not exceeding 30cm, provided with selvedges (flat or tubular) on both edges. These articles are produced on special ribbon looms several ribbons often being produced simultaneously; in some cases the ribbons may be woven with wavy edges on one or both sides.
Strips of a width not exceeding 30 cm, cut (or slit) from wider pieces of warp and weft fabric (whether cut (or slit) longitudinally or on the cross) and provided with false selvedges on both edges, or a normal woven selvedge on one edge and a false selvedge on the other. False selvedges are designed to prevent unravelling of a piece of cut (or slit) fabric and may, for example, consist of a row of gauze stitches woven into the wider fabric before cutting (or slitting), of a simple hem, or they may be produced by gumming the edges of strips, or by fusing the edges in the case of certain ribbons of man made fibers. They may also be created when a fabric is treated before it is cut into strips in a manner that prevents the edges of those strips from unravelling. No demarcation between the narrow fabric and its false selvedges need be evident in that case. Strips cut (or slit) from fabric but not provided with a selvedge, either real or false, on each edge, are excluded from this heading and classified with ordinary woven fabrics.
* * *
EN 59.11
The textile products and articles of this heading present particular characteristics which identify them as being for use in various types of machinery, apparatus, equipment or instruments or as tools or parts of tools.
EN 59.11
(B) TEXTILE ARTICLES OF KIND USED FOR TECHNICAL PURPOSES
All textile articles of kind used for technical purposes (other than those of headings 58.08 to 59.10) are classified in this heading and not elsewhere in Section XI (see Note 7(b) to the Chapter); for example :
Any of the fabrics of (A) above which have been made up (cut to shape, assembled by sewing, etc.)…[.]
* * *
In NY N282623, CBP classified the subject Twist-Tube in heading 5806, HTSUS, as a narrow woven fabric. The decision in NY N282623 determined that the subject Twist-Tube was not classifiable under heading 5911, HTSUS, because the Twist-Tube was not a textile article since it did not satisfy the definition of being “made-up” as set forth in Note 7 to Section XI.
In your request for reconsideration, you assert that the Twist-Tube is properly classified in heading 5911, HTSUS, as a textile product designed for technical uses. In support of your contention, you state that the Twist-Tube meets the requirements of Note 7(a) to Chapter 59, HTSUS, excluding it from heading 5806, HTSUS. You further assert that the Twist-Tube is described by the ENs to heading 5911, as it is a textile product or textile article which is designed for use with a certain type of machinery, specifically, motor vehicles. You note that CBP has previously classified textile products and articles used in motor vehicles and vehicle parts under heading 5911, HTSUS; citing to NY N239632, dated April 12, 2013. Similarly, you state that the Twist-Tube is an OEM certified part used by vehicle manufacturers to satisfy NHTSA regulations governing flammability.
Finally, you argue that the Twist-Tube is classifiable under heading 5911, HTSUS, because it has a technical purpose and allows for the technical functioning of another good. In support of this contention you cite to Headquarters Ruling Letter (“HQ”) 957218, dated March 24, 1995, arguing that the Twist-Tube creates a barrier between the electrical wiring assembles and the heat from the vehicle’s engine which allows the electrical wiring assembles to function properly. From this you conclude that the Twist-Tube has a technical purpose as described by the terms of heading 5911, HTSUS.
Concerning the rationale in NY N282623 that the Twist-Tube was not a textile article because it did not satisfy the definition of being “made-up”, we note that Note 7 to Section XI primarily applies to tariff provisions which include the phrase “made-up” in the terms of its heading or subheading. For example, heading 6307, HTSUS, provides for: “Other made up articles…” Likewise, heading 5608, HTSUS, provides for: Knotted netting…; made up fishing nets and other made up nets, of textile materials.” Heading 5702, HTSUS, provides, in relevant part, for: “Carpets…whether or not made up…” It follows that Note 7 to Section XI is intended to explain or define the meaning of the phrase “made up” as it is used in various tariff headings of Section XI. Yet, the language of heading 5911, HTSUS, does not include or make reference to the phrase “made up.” Likewise, the legal notes to Chapter 59, HTSUS, do not include or make reference to the phrase “made up.” However, subheading 5911.20, HTSUS, includes the phrase in its terms (i.e., “Bolting cloth, whether or not made up.”). Likewise, EN 59.11 (B)(1) states, in pertinent part, “(1) Any of the fabrics of (A) above which have been made up (cut to shape, assembled by sewing, etc.).” Accordingly, not all goods classifiable under heading 5911, HTSUS, are subject to Note 7 to Section XI unless its classification concerns the specific “made up” requirement.
In the instant case, the Twist-Tube features characteristics that are present in both heading 5806, HTSUS, and heading 5911, HTSUS. In particular, the Twist-Tube is produced as a flat woven textile fabric with multiple warp and weft. The finished tape is run through a heating process to create its tubular shape. Moreover, according to CBP Lab Report NY20171862, the subject Twist-Tube is a narrow woven fabric with two selveges on both ends (one heat sealed; the other knitted), which measures 6.5 centimeters in width in its open flattened state. Hence, based on its woven construction, measurements and dimensions, the subject Twist-Tube meets the definition of a narrow-woven fabric within the meaning Note 5(a) to Chapter 58, HTSUS and EN 58.06(A)(1) and (2).
However, the fact that the Twist-Tube is a narrow woven fabric, does not preclude the Twist-Tube from classification under heading 5911, HTSUS. Instead, we note that the scope of heading 5911, HTSUS, includes flat woven textile fabrics with multiple warp and weft, and other woven textile fabrics – so long as those goods also satisfy the conditions of Note 7, to Chapter 59, HTSUS. In fact, the classification of (flat or tubular) narrow woven fabrics is contemplated by the terms of Chapter 59, HTSUS. Specifically, Note 1 to Chapter 59 provides, in relevant part, that: “Except where the context otherwise requires, for purposes of this chapter the expression “textile fabrics” applies only to the woven fabrics of chapters 50 to 55 and headings 5803 and 5806…[.]” It follows that textile fabrics that are considered narrow woven textile fabrics of heading 5806, HTSUS, are not excluded from heading 5911, HTSUS. Accordingly, beyond its measurements, dimensions and construction, the fundamental purpose and primary use of the Twist-Tube also warrant consideration.
In particular, classification in heading 5911, HTSUS, requires establishing that the Twist-Tube is either a “textile products used for technical purposes” or a “textile articles suitable for industrial use.” Although the terms: “textile products used for technical purposes” and “textile articles suitable for industrial use” are not specifically defined by the HTSUS, EN 59.11 states that: “[t]he textile products and articles of this heading present particular characteristics which identify them as being for use in various types of machinery, apparatus, equipment or instruments or as tools or parts of tools.” In keeping with the definition set out in EN 59.11, CBP has determined that certain textile products and articles have possessed the characteristics which identify them as being for use in various types of machinery, apparatus, equipment or instruments. For example, in HQ 081817, dated January 17, 1989, CBP classified roll covers for damper rollers used in the printing industry. The covers, were of tubular shape, cut to size and fit over the damper rollers. According to HQ 081817, the function of the host damper rollers is to moisten the non-image areas of a lithographic plate so that the plate will not accept ink from the ink rollers. In HQ 081817, CBP determined that the roll covers were textile articles that served as an integral and necessary part of a lithographic printing press. As such, CBP determined that the roll covers had a technical purpose within the meaning of Note 7(b) to Chapter 59, HTSUS, and therefore classified in heading 5911, HTSUS.
Similarly, in HQ 084937, dated November 29, 1989, CBP classified woven textile tubing fabric used on the plate surface of acid batteries under heading 5911, HTSUS, because it was a flat woven fabric with multiple weft and warp that would be further produced into a tubular battery gauntlet. In HQ 962967, dated November 21, 2000, CBP classified gaskets used in automatic data processing machines and similar computer equipment under heading 5911, HTSUS, after determining that the gaskets had a technical purpose within the meaning of Note 7 to Chapter 59, HTSUS. See also, HQ 956956, dated September 23, 1994 (In which CBP classified shielding gaskets in heading 5911, HTSUS, as the gaskets were used to prevent leakage of electromagnetic waves from electrical machinery and apparatus). Likewise, in HQ 967012, dated July 7, 2004, CBP determined that felt washers used in brass musical instruments were classified in heading 5911, HTSUS, because they were constructed of felt textile material, were provided for eo nomine in the exemplars of EN 59.11 and presented a particular characteristic which identified them as having a technical use with an instrument. See HQ 966913, dated July 7, 2004, (Wherein CBP classified felt piano washers used for pedal rod assemblies, in heading 5911, HTSUS). See also, NY G89391, dated April 17, 2001, (In which CBP classified roll covering wrap for use on laundry flatwork ironers that press laundered sheets, pillow cases and table clothes, in heading 5911, HTSUS).
The subject Twist-Tube is principally used to cover wiring assemblies in automobiles and light trucks. Moreover, the Twist-Tube sheaths and protects the electrical cable harnesses and wiring assemblies while simultaneously creating a barrier between the electrical wiring assemblies and the heat from the vehicle’s engine which ultimately allows electrical wiring assembles to function properly. Accordingly, based on its principal use, the Twist-Tube presents with an industrial or technical purpose which identifies it as being for use with a particular type of machinery, apparatus, or equipment; namely automotive engine components.
Having established that the subject Twist-Tube is used for a technical purpose or is otherwise suitable for industrial use – we must now determine whether it is a textile “product” or a textile “article” for purposes of Note 7 to Chapter 59. In Airflow Tech v. United States, 804 F. Supp. 2d 1292, the Court noted that Note 7 to Chapter 59 articulates a fundamental distinction between “products” and “articles” explaining that “the terms “product” and “article” – for purposes of Note 7 to Chapter 59 – must be given different meanings.” The Court further explained that:
“…as the terms are used in Note 7 to Chapter 59, a “textile product” appears to refer to textile materials (e.g., textile fabrics, felts, cloth), whereas a “textile article” refers to a textile object or item with a fixed identity and dimensions (e.g., gaskets, washers, polishing disks). See Pl.’s Brief at 22 (explaining that “textile materials of Chapter Note 7(a) are textile products which are used to make finished goods; the textile articles of Chapter Note 7(b) are finished goods themselves. . . Unlike Note 7(a) “textile products,” which may be imported in rolls or bolts, Note 7(b) “textile articles” upon importation possess the fixed identity and specific dimensions required for use with a particular machine or for some other specific technical application.”
Airflow Tech, at 1308. This fundamental distinction is significant in determining which subsection of Note 7 to Chapter 59, HTSUS, best describes the Twist-Tube. According to the definition in Airflow Tech, the Twist-Tube is not a “textile product” of Note 7(a) to Chapter 59 – as it is not used to “make” or later create a finished good. Instead, the Twist Tube is itself a finished article of commerce. According to the April 2019 FMC submission and the FMC website, the Twist-Tube does not require any post-importation modifications or additional manufacturing prior to its use by the ultimate consumer. Instead, the Twist-Tube is cut to specification prior to importation and is ready for use upon delivery. Upon importation, the Twist-Tube can be installed by hand, utilizing its self-wrapping construction. Once wrapped around the bundle or harness, the user must then twist the Twist-Tube around the harness to secure it in place. In instances, where twisting does not sufficiently affix the Twist-Tube to the bundle, tape can be used at each end to secure it in place.
Additionally, the Twist-Tube is produced in its finished state and is ready for use in its condition as imported. Lastly, based on its unique technical uses, fixed dimensions and OEM specifications, we find that the Twist-Tube presents with a fixed identity within the meaning Airflow Tech. Moreover, much like the gaskets and washers of HQ 967012 and HQ 956956, which seal the junction between two mating surfaces and secures a greater bearing on the surface of the structure beneath, the Twist-Tube sheaths and protects the electrical cable harnesses and wiring assemblies from abrasion with other engine components. Similarly, like the damper roller covers of HQ 081817, and the textile tubing fabric of HQ 084937, the Twist-Tube’s tubular self-wrapping construction covers cable assembly harnesses and electrical harnesses inside the automotive engine compartment while simultaneously providing OEM certified flame retardation. Accordingly, we find that the Twist-Tube is a textile article of a kind used for technical purposes within the meaning of Note 7(b) to Chapter 59, HTSUS, and is consistent with the definition of a textile article as set forth in Airflow Tech.
HOLDING:
By application of GRI 1 and Note 7(b) to Chapter 59, HTSUS, the Twist-Tube textile self-wrapping tubular sleeve is classifiable in heading 5911, HTSUS. The merchandise is specifically classified in subheading 5911.90.0080, HTSUSA, which provides for: Textile products and articles, for technical uses, specified in note 7 to this chapter: Other, Other.” The 2021 column one, general rate of duty is 3.8% ad valorem.
EFFECT ON OTHER RULINGS:
NY N282623, dated February 17, 2017, is hereby REVOKED.
Additionally, NY N259736, dated December 24, 2014, NY N259746, dated December 23, 2014, NY N259737, dated May 13, 2016, NY N259747, dated May 13, 2016, are 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,
For Craig T. Clark, Director
Commercial and Trade Facilitation Division