HQ H302557
OT:RR:CTF:FTM HQ H302557 TSM
Port Director
Port of Los Angeles/Long Beach
U.S. Customs and Border Protection
301 E. Ocean Blvd. Suite 1400 Long Beach, CA 90802
Attn: Neil M. Cohen, Supervisory Import Specialist
Re: Protest and Application for Further Review No. 2704-18-100162; Classification of elastic bands with plastic clips.
Dear Port Director:
This is in reference to the Application for Further Review (“AFR”) of Protest No. 2704-18-100162, timely filed on or about January 22, 2018, on behalf of Sunrise Identity LLC (hereinafter “Sunrise” or “Protestant”) regarding the tariff classification of certain elastic bands with plastic clips under the Harmonized Tariff Schedule of the United States (“HTSUS”). A sample of the merchandise at issue was examined by this office.
FACTS:
The merchandise at issue is elastic bands with plastic clips. The bands are made of fabric webbing composed of rubberized yarns, enabling the bands to be stretched. The plastic clips are secured at each end of the bands by sewing. The elastic bands are intended to be clipped onto a pallet or similar product and are used to secure the goods thereon.
The subject protest covers three entries, entered between August 29, 2016 and November 25, 2016, under subheading 6307.90.98, HTSUS, which provides for “Other made up articles, including dress patterns: Other: Other: Other.” The subject entries were liquidated between August 11, 2017 and October 20, 2017, under subheading 4202.92.45, HTSUS, which provides for “Trunks, suitcases, vanity cases, attache cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, insulated food or beverage bags, toiletry bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes, powder cases, cutlery cases and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials or with paper: Other: With outer surface of sheeting of plastics or of textile materials: Travel, sports and similar bags: Other.”
In the protest, dated January 22, 2018, Sunrise argues that the subject merchandise is classified under subheading 6307.90.98, HTSUS, as entered. Sunrise further argues that CBP mistakenly classified the elastic bands with plastic clips at issue as delivery bins of subheading 4202.92.45, HTSUS. Delivery bins were apparently imported by Sunrise under entries not involved with this protest.
ISSUE:
Whether the elastic bands with plastic clips at issue are classified under heading 4202, HTSUS, which provides for “Trunks, suitcases, vanity cases, attache cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, insulated food or beverage bags, toiletry bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes, powder cases, cutlery cases and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials or with paper” or under heading 6307, HTSUS, which provides for “Other made up articles, including dress patterns.”
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 of the entries. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2) (B) (ii), (iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006)).
Further Review of Protest No. 2704-18-100162 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24 (b) because the decision against which the protest was filed involves questions of law or fact which have not been ruled upon by the Commissioner of CBP or his designee or by the Customs courts.
Classification under the HTSUS is determined 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.
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Note 7 to Section XI, which includes Chapters 50-63, provides that:
For the purposes of this section, the expression “made up” means:
Cut otherwise than into squares or rectangles;
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);
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;
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;
Cut to size and having undergone a process of drawn thread work;
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
Knitted or crocheted to shape, whether presented as separate items or in the form of a number of items in the length.
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In addition, in interpreting the HTSUS, the Explanatory Notes (“ENs”) of the Harmonized Commodity Description and Coding System may be utilized. The 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 to heading 63.07 provides, in pertinent part, the following:
This heading covers made up articles of any textile material which are not included more specifically in other headings of Section XI or elsewhere in the Nomenclature.
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The 2016 and 2017 HTSUS provisions under consideration are as follows:
4202 Trunks, suitcases, vanity cases, attache cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, insulated food or beverage bags, toiletry bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes, powder cases, cutlery cases and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials or with paper
* * *
6307 Other made up articles, including dress patterns
* * *
Upon review of the record and examination of the sample provided to us by the Protestant, we find that the elastic bands with plastic clips at issue are not textile fabric delivery bins. Moreover, they bear no resemblance to any of the items provided for in heading 4202, HTSUS. Upon review, we have determined that the webbing portion of the bands is warp knit, provided for in heading 6003, HTSUS, which covers knitted fabrics of a width not exceeding 30 cm. However, we note that the elastic bands at issue feature plastic clips, secured at each end by sewing. Therefore, we find that they are ineligible for classification in heading 6003, HTSUS. Moreover, we note that no heading in the HTSUS specifically provides for elastic bands with plastic clips.
EN 63.07 provides that this heading covers “made up” articles of any textile material which are not included more specifically in any other headings of Section XI or elsewhere in the Nomenclature. Since the elastic bands are assembled at each end by sewing, we find that they are “made up” within the meaning of Note 7(f) to Section XI. Accordingly, we find that they are classified in heading 6307, HTSUS.
Based on the foregoing, we conclude that the elastic bands with paper clips at issue are classified in heading 6307, HTSUS, and specifically in subheading 6307.90.98, HTSUS, which provides for “Other made up articles, including dress patterns: Other: Other: Other.”
HOLDING:
By application of GRIs 1 and 6, the subject elastic bands with paper clips are classified in subheading 6307.90.98, HTSUS, which provides for “Other made up articles, including dress patterns: Other: Other: Other.” The 2016 and 2017 column one general rate of duty 7%.
You are instructed to GRANT the protest.
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 or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (“CROSS”) at https://rulings.cbp.gov/, which can be found on the CBP website at http://www.cbp.gov and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division