HQ 956099
March 25,1994
CLA-2:CO:R:C:G 956099 PR
Mr. Wayne H. Sweeney
A. N. Deringer Inc.
P.O. Box 284 Rte. 89
Highgate Springs, VT. 05460
RE: Modification of NY 894310; Classification of Pintlepin
Assemblies; Assembly of Components Creates a Made Up
Article; Applicability of NAFTA; Nonqualifying Component; De
Minimis Rule Not Affected by Weight of Packaging
Dear Mr. Sweeney:
This is in reference to a ruling issued to you by our Area
Director, New York Seaport, NY 894310, concerning the
classification and North American Free Trade Agreement (NAFTA)
status of pintlepin assemblies. That ruling was issued in
response to your letter of January 24, 1994, forwarding a ruling
request by L‚veill‚ et Fils Inc., on behalf of their client
Donald Marchand. L‚veill‚ et Fils Inc. has requested that we
review that ruling. This ruling is made pursuant to Part 181,
Customs Regulations.
FACTS:
This office has not received a sample of the merchandise.
However, a sample was available for examination when NY 894310
was issued and the following information is contained in that
ruling.
The pintlepin assembly consists of a length of
monofilament of polyetheretherketone ("peek") which is
connected by a small piece of steel tubing to a length
of stainless steel wire which comes to a point like a
needle. The monofilament varies in length from 100 to
400 inches, and the stainless steel wire leader is the
same length as the monofilament. The monofilament
diameter ranges from 0.5 to 0.9 mm, and its linear
density ranges from 2679 to 8349 decitex . . . these
goods are used to close seams on "Dry Screens," which -2-
are felt belts used to filter water and pulp in the paper
making industry. The metal leader and tubing is cut off and
discarded after leading the monofilament through the seam of
the felt or belt.
You indicate that the monofilament peek originates
in England, that the wire originates in the NAFTA
territory, and that the steel tubing which joins the
two components originates in France. The assembly is
made in Canada by soldering these three components
together. It is wrapped on a plastic spool and
packaged in a blister pack. Data submitted . . .
shows that the monofilament peek constitutes 17% of the
weight of the finished good.
In NY 894310, Customs ruled that the monofilament imparted
the essential character to the pintlepin assembly and, therefore,
it was classifiable under the provision for other synthetic
monofilaments of 67 decitex or more, with no cross sectional
dimension exceeding 1 mm, in subheading 5404.10.8080, Harmonized
Tariff Schedule of the United States Annotated (HTSUSA). While
the classification had not been requested, it was necessary to
classify the pintlepin assembly in order to determine if it
qualifies under NAFTA. NY 894310 ruled that the pintlepin
assembly is not a NAFTA qualifying good.
ISSUE:
L‚veill‚ et Fils believes that the merchandise is not
classifiable under subheading 5404.10.8080. It is of the view
that a pintlepin assembly is properly classifiable under the
provision for articles of yarn, or strip or the like, of heading
5404 through 5405, in heading 5609, HTSUSA, because of Section XI
Note 8, HTSUSA.
L‚veill‚ et Fils also asks whether the weight of a pintlepin
assembly includes the plastic case in which it is packed. If it
does, the weight of the monofilament is then less than seven
percent of the article and it should not be considered due to the
application of NAFTA's de minimis rule. Thus, in the view of
L‚veill‚ et Fils, the goods are NAFTA qualifying and duty-free
under subheading 9905.39.02, HTSUSA, which specifically provides
for pintlepin assemblies.
LAW AND ANALYSIS:
A. CLASSIFICATION
Imported goods are classifiable according to the
General Rules of Interpretation (GRI's) of the Harmonized Tariff -3-
Schedule of the United States (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. GRI 2(a) is not applicable
in this situation. GRI 2(b) provides that a reference to a
material in a heading shall be taken to include mixtures or
combinations of that material with other materials and that any
reference to goods of a given material shall be taken to include
goods partly of that material; if goods consist of more than one
material, then classification will be according to GRI 3. GRI
3(a) requires that where two or more headings describe the
merchandise, the more specific will prevail; but if two or more
headings each refer to part only of the materials in the goods,
then classification will be by GRI 3(b). GRI 3(b) states that
the material or component which imparts the essential character
to the goods will determine their classification. In the event
that the applicable headings are equally specific, or that no
material or component imparts the essential character, then the
goods are classifiable according to GRI 3(c) under the provision
which occurs last in numerical order among those provisions being
considered.
Section XI Note 7, HTSUSA, provides that the expression
"made up" means, among other things, "Assembled by sewing,
gumming or otherwise." Following this definition, pintlepin
assemblies which consist of three components combined into a
single unit are "made up".
Section XI Note 8 states, "Chapters 50 to 55 . . . do not
apply to goods made up within the meaning of note 7 above."
Accordingly, because subheading 5404.10.8080 is in chapter 54,
pintlepin assemblies cannot be classified under that subheading.
Since pintlepin assemblies are made from three different
materials and there is no eo nomine provision which specifically
provides for pintlepin assemblies, pursuant to GRI 2(b),
classification is determined by GRI 3.
Subheading 7326.20, HTSUSA, provides for other articles of
steel wire and, as noted by the initiator of the ruling request,
subheading 5609.00 provides for articles of yarn or strip of
heading 5404. Thus, GRI 3(a) is not applicable because two or
more headings each refer to part only of the pintlepin
assemblies.
As stated above, under GRI 3(b), if one of the components or
materials impart the essential character, that component or
material determines the classification of the good. In this
case, the wire and tubing are cut off and discarded after leading
the monofilament through the seam of the felt or belt. Hence, it
-4-
is our view that the wire and tubing are present in the assembly
merely to facilitate the installation of the monofilament, which
is the only portion of the pintlepin assemblies that performs the
intended function. As a result, it is the monofilament that
imparts the essential character to the pintlepin assemblies and
determines their classification. Accordingly, the pintlepin
assemblies are properly classifiable in subheading 5609.00.3000,
HTSUSA.
B. NAFTA STATUS
General Note 12, HTSUSA, which incorporates Article 401,
North American Free Trade Agreement (NAFTA), into the HTSUSA,
provides, in pertinent part:
* * *
(b) For the purposes of this note, goods imported into
the customs territory of the United States are eligible
for the tariff treatment and quantitative limitations
set forth in the tariff schedule as "goods originating
in the territory of a NAFTA party" only if--
(i) they are goods wholly obtained or produced
entirely in the territory of Canada, Mexico and/or
the United States; or
(ii) they have been transformed in the territory
of Canada, Mexico and/or the United States so
that--
(A) except as provided in subdivision (f) of
this note, each of the non-originating materials
used in the production of such goods undergoes a
change in tariff classification described in
subdivisions (r), (s) and (t) of this note or the
rules set forth therein, or
(B) the goods otherwise satisfy the
applicable requirements of subdivisions (r), (s)
and (t) where no change in tariff classification
is required, and the goods satisfy all other
requirements of this note; or
(iii) they are goods produced entirely in the
territory of Canada, Mexico or the United States
exclusively from originating materials.
Since the pintlepin assemblies are produced in Canada from
materials of different countries (England, France, and a NAFTA
country), they do not meet the eligibility requirements of
General Notes 12(b)(i) or 12(b)(iii). -5-
Thus, in order to qualify under General Note 12(b), the
materials must undergo the change in classification required by
General Note 12(t). For goods classifiable under heading 5609,
the rule is a change to that heading "from any other chapter,
except . . . chapters 54 through 55." The pintlepin assemblies
do not qualify under General Note 12(b)(ii) because the English
monofilament, which would be classifiable in chapter 54 in its
condition as imported into Canada, does not undergo the requisite
change in tariff classification.
It is suggested that if the weight of the plastic packaging
materials is considered, the weight of the monofilament becomes
less than seven percent of the weight of the article and must be
disregarded under General Note 12(f)(vi), HTSUSA,--the "de
minimis" rule. Therefore, the monofilament is not required to
undergo a required change in classification.
General Note 12(f)(vi), HTSUSA, provides:
(vi) A good provided for in chapters 50 through 63,
inclusive, of this schedule that does not
originate because certain fibers or yarns used in
the production of the component of the good that
determines the tariff classification of the good
do not undergo an applicable change in tariff
classification, provided for in subdivisions (r),
(s) and (t) of this note, shall nonetheless be
considered to originate if the total weight of all
such fibers or yarns in that component is not more
than 7 percent of the total weight of that
component. (underscoring added)
The "de minimis" rule is not applicable to the pintlepin
assemblies for the following reasons.
1. Since the monofilament comprises 100 percent of the
component which imparts the essential character to the goods, and
which, therefore, determines the classification of those goods,
General Note 12(f)(vi), by its terms, is not applicable.
2. The plastic packaging is not considered in this
instance because of the applicability of General Note 12(j),
HTSUSA, which provides, in pertinent part:
Packaging materials and containers for retail sale.
Packaging materials and containers in which a good is
packaged for retail sale shall, if classified with the
good, be disregarded in determining whether all the
non-originating materials used in the production of the
good undergo the applicable change in tariff
classification set out in subdivision (t) of this note.
(italics added) -6-
The wording of General Note 12(j) makes it clear that
packaging materials and containers can not be used to defeat the
applicability of the tariff shift rules contained in General Note
(12)(t).
Accordingly, the plastic packaging is disregarded when
determining whether the nonoriginating textile monofilament
undergoes the tariff shift required by General Note 12(t).
HOLDING:
A. The pintlepin assemblies, which are made from textile
monofilaments, steel wire, and steel tubing, are properly
classifiable under the provision for articles of yarn, strip or
the like of heading 5404 or 5405, in subheading 5609.00.3000,
HTSUSA.
B. The pintlepin assemblies, which contain materials from
two non-NAFTA countries, one of which does not comply with the
tariff shift requirements of General Note 12(t), do not qualify
for tariff preference under NAFTA.
Advance ruling requests concerning the applicability of
NAFTA to imported goods are subject to the procedures set out in
Sections 181.91-181.101, Customs Regulations. Since we find the
classification portion of NY 894310 to be incorrect, pursuant to
Section 181.100(b)(1)(i)(B), Customs Regulations (C.R.), NY
894310 is modified to reflect the analyses and findings set out
in this ruling.
This modification is not retroactive. However, the
classification portion of NY 894310 will not be valid for
importations of the subject merchandise arriving in the United
States after the date of this notice. If it can be shown that you
relied on NY 894310 to your detriment, you may apply to this
office for relief.
Sincerely,
John Durant, Director
Commercial Rulings Division