CLA-2 RR:CTF:TCM H193802 MG
Port Director, Seattle Service Port
U.S. Customs and Border Protection
1000 Second Ave., Suite 2100
Seattle, WA 98104
Attn: Grace Carmichael, Import Specialist
Re: Application for Further Review of Protest No. 3001-11-100431: Compsol liners of Hessian fabric
Dear Port Director:
This is in response to Protest 3001-11-100431, dated August 25, 2011, filed by Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt, LLP, on behalf of Henry W Peabody & Co. (Protestant), in response to your classification of items referred to as Compsol liners under the Harmonized Tariff Schedule of the United States (HTSUS). A sample of the two styles at issue was provided. An in-person meeting was held with counsel at CBP Headquarters, on May 21, 2015.
FACTS:
According to the submission, the merchandise at issue consists of two styles of compsol liners. One style features four hemmed sides, one folded side and is open at the top. The second style is folded and hemmed on one side to create a cone shape. The cone shape style has a sewn-in label that says “liner.”
The use of these liners is described by the Protestant as follows. At a commercial nursery, trees are mechanically harvested. The harvesting includes the roots of the tree and the soil that adheres to the roots (collectively known as the “root ball”). Immediately after harvesting, the root ball is placed into the fabric liner. The fabric liner containing the root ball is, in turn, placed within a wire frame. The fabric is wrapped and closed at the top by means of a cord that is also tied to the wire frame. With their root balls secured within the fabric liner, the trees are transported to the nursery’s customers. The customers plant the trees along with the fabric liner and wire frame. After planting, the fabric liner decomposes and the tree’s roots grow through the wire frame.
Protestant imported one entry of the subject product on March 24, 2011, under 6305.10.00, HTSUS, which provides for: “Sacks and bags, of a kind used for the packing of goods: Of jute or of other textile bast fibers of heading 5303.” The entry was liquidated on May 20, 2011, under subheading 6307.90.98, HTSUS, which provides for: “Other made up articles, including dress patterns: Other: Other,” at a duty rate of 7%, ad valorem. This Protest and AFR were filed on August 25, 2011.
ISSUE:
Whether the instant articles of Hessian fabric are classified as sacks or bags of a kind normally used for the packing of goods of heading 6305, HTSUS, or as other made up textile articles of heading 6307.
LAW AND ANALYSIS:
Initially, we note that the matter is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification and the rate and amount of duties chargeable. The protest was timely filed on August 25, 2011, within 180 days of liquidation, pursuant to 19 U.S.C. §1514(c)(3).
Further Review of Protest No. 3001-11-100431 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24 because the decision against which the protest was filed involves specific factual and legal questions that have not been the subject of a Headquarters ruling or court decision. Specifically, that NY R02895, dated December 15, 2005, which considered somewhat similar merchandise, did not consider facts or law which support classification under subheading 6305.10.00, HTSUS.
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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.
In addition, in interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89 80, 54 Fed. Reg. 35127 (August 23, 1989).
The 2011 HTSUS provisions at issue are as follows:
6305 Sacks and bags, of a kind used for the packing of goods:
6305.10.00 Of jute or of other textile bast fibers of heading 5303
* * * * * *
6307: Other made up articles, including dress patterns:
6307.90: Other:
6307.90.98: Other………..
* * * * * *
Heading 6305, HTSUS, provides for sacks and bags, of a kind normally used for the packing of goods for transport, storage or sale. The ENs to subheading 6305 provide, in relevant part, as follows:
Sacks and bags, of a kind used for the packing of goods.
6305.10 – Of jute or of other textile bast fibres of heading 53.03
…
This heading covers textile sacks and bags of a kind normally used for the packing of goods for transport, storage or sale.
These articles, which vary in size and shape, include in particular flexible intermediate bulk containers, coal, grain, flour, potato, coffee or similar sacks, mail bags, and small bags of the kind used for sending samples of merchandise by post. The heading also includes such articles as tea sachets.
Packing cloths which, after use as bale wrappings, are roughly or loosely stitched together at the edges, but which do not constitute finished or unfinished sacks or bags, are excluded (heading 63.07).
* * * * * *
Heading 6307, HTSUS, provides for other made up articles. The EN to heading 6307, HTSUS, 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.
Bags are flexible containers used to carry objects with an opening, although bags do not have to close at the top. See, Rooster Products v. United States, 24 CIT 357 (2000) and Camelback Products v. United States, 704 F. Supp 2d 1335, 1340 (Ct. Int’l Trade 2010), reversed on other grounds, 2011 U.S. App. LEXIS 12385 (2011).
The exemplars listed in the ENs to heading 6305, HTSUS, are coal, grain, flour, potato, coffee or similar sacks mail bags, and small bags of the kind used for sending samples of merchandise by post. The heading also includes articles such as tea sachets. In this regard, we note that the listed exemplars consist of dry, flowing materials. The instant merchandise is used in conjunction with a wire frame to contain the root ball so the tree may be transported for planting. We note that a root ball does not consist of dry, flowing material and is not similar to the listed exemplars in the ENs to heading 6305.
In the case of the merchandise at issue, the instant jute liners are used in conjunction with a metal frame. The jute fabric serves as protection for the roots, and assists in keeping them bounded and moist during planting, while the wire frame holds the root ball and the tree in a manner similar to a container. We note that, without the metal frame, the jute material alone is not strong enough to function as a bag to carry the root ball and the tree. Therefore, the jute material’s functions is more akin to a liner or wrapping covering the root ball and tree. In this regard, we find that the merchandise at issue is not similar in form or function to the exemplars of the ENs to heading 6305, HTSUS.
Furthermore, we have ruled that bags classified in heading 6305, HTSUS, are of the class or kind of merchandise used to carry or store commercial goods usually transported in bulk. See, HQ W968162, dated May 21, 2007 and HQ 960798, dated December 22, 1997. The compsol liners at issue do not serve this function as they do not carry any contents. Rather, they surround the root in order to protect it and remain with it during planting.
Heading 6307, HTSUS, is a residual provision that provides for other made up articles not specifically provided for elsewhere in the tariff. The CBP rulings which classified bags in heading 6307, HTSUSA, include bags which are intended to become part of the completed article and/or do not include bags used for commercial merchandise being transported or stored for sale. See, HQ 967041, dated September 30, 2004.
We find the compsol liners at issue to be more akin to the coir basket and planter liners classified in numerous rulings in heading 6307. In HQ NY K85713, dated May 7, 2004, we classified a tree planting bag from China in subheading 6307.90.98, HTSUS. This cube-shaped planting bag composed of woven polypropylene or polyethylene fabric has two 2’-wide handles made of webbed fabric to allow the bags, when full, to be moved. Eight penny-sized holes punched in the bottom allow excess water to drain. This bag is used by farmers to plant trees and grow them until they are sold, when they will presumably be removed from the bags and the root ball will be wrapped in burlap. Although it had lifting straps, this similar product to the product at issue was not classified in heading 6305, HTSUS, due to its use with a tree. Similarly, the rot-resistant assembled squares, socks, and side seam liners at issue in NY R02895, dated December 15, 2005, were correctly classified in heading 6307, HTSUS.
Accordingly, by application of GRI 1, the subject Articles of Hessian fabric are classified in heading 6307, HTSUS, and are specifically provided for in subheading 6307.90.98, HTSUS, which provides for “Other made up articles, including dress patterns: Other: Other.” The 2011 general, column one rate of duty is 7% ad valorem.
HOLDING:
By application of GRI 1, the subject Articles of Hessian fabric are classified in heading 6307, HTSUS, and are specifically provided for in subheading 6307.90.98, HTSUS, which provides for “Other made up articles, including dress patterns: Other: Other.” The 2011 general, column one rate of duty is 7% ad valorem.
You are instructed to deny the protest in full. 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 Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP 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 Harmon, Director
Commercial and Trade Facilitation Division