CLA-2:CO:R:C:G 955866 PR
District Director of Customs
605 W. Fourth Avenue, Room 205
Anchorage, AK 99501
RE: Request for Further Review of Protest 3126-93-100001,
Concerning the Classification of Inflatable Oil Containment
Booms
Dear Sir:
This ruling is on the protest that was filed against your
decision in the liquidation on March 4, 1992, and concerns the
classification of inflatable oil containment booms.
FACTS:
The imported goods are inflatable oil containment booms
manufactured in the United Kingdom. They are designed to control
oil spills and prevent the oil from contaminating beach and
shallow tidal water areas.
This office does not have a detailed description of the
merchandise. Technical material submitted with the protest shows
that the merchandise is tubular-shaped with metal fittings on the
ends. An invoice description is as follows:
BOOM, CONTAINMENT, OIL, INFLATABLE, 50' LENGTH, 14"
HEIGHT (8" FLOAT, 6" SKIRT), NEOPRENE/NYLON
WEAVE/NEOPRENE FABRIC (29 OZ/SQ YD), 5/16" GALV BALLAST
CHAIN, END CONNECTORS-"QUICK CONNECT" ASTM F962-86, PER
ALYESKA DRAWING #A-1-SK-P4876-C1 W/ONE EACH END (3/8"
STAINLESS STEEL SPRING LOADED SELF-LOCKING PIN)
A specification sheet submitted with the protest describes a
"Mini Shore Guardian" as 1) 25 feet long, 2) international orange
in color, 3) made of a "PVC-22 ounces/square yard" fabric, 4)
having two high integrity automatic valves, and 5) having quick-
connectors with 3/8th inch stainless steel spring loaded self-
locking cross pins. -2-
Another invoice describes the "High Integrity 350 Sprint
Boom" as "manufactured in 118 X 50 ft. sections", with a total
length of 5,900 feet.
A sample of the material comprising the booms was submitted
by the importer and examined by a Customs laboratory. It was
determined to be black sheeting material consisting of outer
layers of polychloroprene rubber (72 percent by weight) and a
middle woven fabric layer of man-made nylon fibers (28 percent by
weight). The neoprene was noncellular and the sample weighed 981
grams per square meter.
ISSUE:
The merchandise was liquidated under a basket provision for
other made up textile articles (not more specifically provided
for), in subheading 6307.90.9986, Harmonized Tariff Schedule of
the United States Annotated (HTSUSA), with duty at the rate of 7
percent ad valorem. It is the importer's position that since the
containment booms are inflatable articles, they should be
classified under the provision for other inflatable articles of
vulcanized rubber (other than hard rubber), in subheading
4016.95.0000, HTSUSA, with duty at the rate of 4.2 percent ad
valorem.
LAW AND ANALYSIS:
Imported goods are classifiable according to the General
Rules of Interpretation (GRI's) of the HTSUSA. GRI 1 provides
that for legal purposes, classification shall be determined
according to the terms of the headings in the tariff and
according to any pertinent section or chapter notes.
The claimed classification, subheading 4016.95.0000, is
located in Chapter 40, HTSUSA. Note 2(a) to that chapter states,
that goods of Section XI (textiles and textile articles) are not
classifiable in Chapter 40. Subheading 6307.90.9986 is located
in Chapter 63, which is part of Section XI. Accordingly,
pursuant to GRI 1, if, under the rules for classifying goods in
Section XI, the containment booms are classifiable in that
section, they are not classifiable in Chapter 40.
Note one to Chapter 63 states, "Subchapter 1 applies only to
made up articles, of any textile fabric." In order to apply that
note, the meaning of the phrases "made up" and "textile fabric"
must be determined.
MADE UP
Section XI, Note 7, provides, in pertinent part, that for
the purposes of section XI, the expression "made up" means:
-3-
(a) Cut otherwise than into squares or rectangles;
* * *
(e) 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
The inflatable oil containment booms fit within the purview
of Note 7 and qualify, therefore, as "made up".
TEXTILE FABRIC
There is no specific definition in the HTSUSA of "textile
fabric." Note 4 of Chapter 59, states, in pertinent part, that
for the purposes of classification in heading 5906, the
expression "rubberized textile fabrics" means:
(a) Textile fabrics impregnated, coated, covered or
laminated with rubber:
(i) Weighing not more than 1,500 g/mý; or
(ii) Weighing more than 1,500 g/mý and containing
more than 50 percent by weight of textile
material;
Since the subject merchandise is made of material which
weighs less than 1,500 g/mý and which is comprised of a textile
fabric that has been coated, covered or laminated with rubber, it
is a "rubberized textile fabric." As such, an article comprised
of that material is an article of a "textile fabric" within the
purview of Note 1 to Chapter 63 and, therefore, the containment
booms are not classifiable in Chapter 40, HTSUSA. As a result,
the containment booms are classifiable in subheading
6307.90.9986, the only classification in Section XI which
describes that merchandise.
In support of the above, The Harmonized Commodity
Description and Coding System Explanatory Notes (EN), which are
the official international interpretation of the Harmonized
Tariff System, provides persuasive evidence that an article of
rubberized fabric which qualifies as being "made up" is intended
to be classified in Chapter 63. The Explanatory Notes for
heading 5906, at page 819, state that the heading does not
include, among other things, rubberized fabrics which satisfy the
Note 7 requirements for being "made up" and references Chapters
61 to 63. Since, in order to be classifiable in Chapter 63,
except for such articles as embroidery sets, worn clothing, and
rags, and article must be of "any textile fabric", it follows
that a rubberized textile fabric classifiable in heading 5906
qualifies as a textile fabric for purposes of Chapter 63.
-4-
HOLDING:
The subject containment booms are classifiable under the
provision for other made up textile articles in subheading
6307.90.9986, HTSUSA.
The protest should be denied and copy of this ruling should
be attached to the Customs Form 19 furnished to the protestant.
Sincerely,
John Durant, Director
Commercial Rulings Division