CLA-2 RR:CR:GC 966297 DSS
Port Director of Customs
U.S. Customs and Border Protection
4341 International Parkway
Suite 600
Atlanta, Georgia 30354
RE: Request for Further Review of Protest No. 1704-02-100379; vetresit; General Notes Ch. 39; EN 70.19; Heading 8547; Insulating fittings of plastic
Dear Port Director:
This is in response to the request for further review of Protest No. 1704-02-100379, filed by Siemens Shared Services, LLC on behalf of Siemens Westinghouse Power Corp. (SWPC) against your classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of U-channels made from vetresit. Product literature submitted with the protest depicts the article at issue. The entries were liquidated on July 12, 2002, and this protest was filed on October 9, 2002.
FACTS:
The file reflects the following: the articles at issue are U-channels which are used as an insulation channel in SWPC’s electric generator motor. They are composed of vetresit, which is described in the product literature as “a thin laminate consisting of glas-fabric and heat resisting epoxy.” Vetresit is a fabric formed from multiple layers of glass fibers impregnated with a special epoxy and polymids and compressed together to have a hard, rigid character. Product literature indicates that vetresit is designed for use as insulation in electrical equipment at high temperatures.
The protestant entered the articles on July 7, 2002, as insulating fittings of plastics, which are classified under subheading 8547.20.00, HTSUS. However, you liquidated the entries on July 12, 2002, under subheading 8547.90.00, HTSUS, as other insulating fittings for electrical machines, appliances or equipment. Thus, both you and the protestant agree that the U-channels are insulating fittings for electrical machinery, appliances or apparatus. The question is whether the instant U-channels are composed of plastic.
ISSUE:
Whether the instant U-channels composed of vetresit are considered made of plastic for tariff purposes.
LAW AND ANALYSIS:
Initially we note that the protest was timely filed (i.e., within 90 days after but not before the notice of liquidation; see 19 U.S.C. 1514 (c)(3)(A)) and the matter is protestable (see 19 U.S.C. 1514 (a)(2) and (5)).
Classification under the HTSUS is made 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 may then be applied.
The HTSUS provisions (2002) under consideration are as follows:
3926 Other articles of plastics and articles of materials of headings 3901 to 3914:
Other:
3926.90.98 Other
* * * *
8547 Insulating fittings for electrical machines, appliances or equipment, being fittings wholly of insulating material apart from any minor components of metal (for example, threaded sockets) incorporated during moulding solely for purposes of assembly, other than insulators of heading 8546; electrical conduit tubing and joints therefor, of base metal lined with insulating material:
8547.20.00 Insulating fittings of plastics
8547.90.00 Other
* * * *
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HTSUS and are thus useful in ascertaining the classification of merchandise under the System. The Bureau of Customs and Border Protection (Customs) believes the ENs should always be consulted. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
You determined that the articles under protest are made from a blend of glass fibers and plastics, which are not considered insulating materials made of plastics. However, the protestant argues that under a previous ruling the material that forms the U-channels was found to be an article of plastic under heading 3926, HTSUS. See New York Ruling Letter (NY) A88486, dated November 1, 1996 (classifying vetresit as an article of plastic).
Plastics and articles thereof of Chapter 39 include certain combinations of plastics and materials other than textiles, provided they retain the essential character of articles of plastics. The General Notes to Chapter 39 indicate that products consisting of glass fibers impregnated with plastics and compressed together remain in Chapter 39, provided they have a hard, rigid character. (If not rigid, and if having the character of articles of glass fibers they are classified in Chapter 48 or 70, as the case may be). See Headquarters Ruling Letter (HQ) 950223, dated December 4, 1991. In HQ 950223, Customs classified tubes composed of phenolic plastic reinforced by woven fiberglass textile material containing, by weight, 64 percent fiberglass and 34 percent plastic as articles of plastic because they had a hard, rigid character thereby retaining the characteristics of plastics
Therefore, such articles having a hard, rigid character may be considered as having the essential character of articles of plastic. This is further shown by EN 70.19, which states that articles obtained by compressing glass fibers, or superimposed layers of glass fibers, impregnated with plastics, are excluded from heading 7019 if having a hard, rigid character and hence having lost the character of articles of glass fibers.
Based on the information in the file, the U-channels possess a hard, rigid character. Therefore, we consider the instant vetresit to be made of plastic for tariff purposes. The information in the file indicates that the vetresit has been further worked, which precludes its classification in Chapter 39. However, the U-channels are, prima facie, classifiable in heading 8547, HTSUS. EN 85.47 provides in relevant part that:
[the heading] covers all fittings for electrical machinery, appliances or apparatus, provided:
(i)They are wholly of insulating material, or are wholly of insulating material (e.g., plastics) apart from any minor components of metal (screws, threaded sockets, sleeves, etc.) incorporated during moulding solely for purposes of assembly.
and (ii) They are designed for insulating purposes even though at the same time they have other functions (e.g., protection).
Based on the information presented in the file, the instant U-channels meet these criteria: they are wholly of insulating material and they are designed for insulation purposes. Therefore, the instant U-channels composed of vetresit are classifiable as insulating material for electric machinery, appliances or apparatus made from plastic.
HOLDING:
Under the authority of GRI 1, the instant U-channels are provided for in heading 8547, HTSUS. They are classifiable in subheading 8547.20.00, HTSUS, as insulating fittings of plastic.
Since reclassification of the merchandise as indicated above will result in a lower rate of duty you are instructed to ALLOW the protest in full.
In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with Customs 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 decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to Customs and Border Protection personnel, and to the public on the Customs and Border Protection Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon
Director,
Commercial Rulings Division