CLA-2 OT:RR:CTF:TCM H234002 TNA
Port Director, Service Port- New Orleans
U.S. Customs and Border Protection
423 Canal Street, Room 260
New Orleans, LA 70130
Attn: Conchetta Wineburg, Import Specialist
Re: Application for Further Review of Protest No: 2002-12-100078; classification of polypropylene yarn
Dear Port Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 2002-12-100078, timely filed on July 6, 2012. The AFR concerns the classification of polypropylene yarn/ ropes under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The subject merchandise consists of three types of polypropylene yarn: Ultra Blue Yarn 60000D Z; Ultra Blue Yarn 30000D Z; and Ultra Blue Yarn 60000D S. The first two are constructed with a final “Z” twist and the third is constructed with a final “S” twist. The twines are composed of a polyethylene/polypropylene blend fibrillated strips. They are not impregnated with rubber or plastic; nor are they braided or plaited.
U.S. Customs and Border Protection (“CBP”) obtained samples of the Ultra Blue Yarn 60000D Z and Ultra Blue Yarn 60000D S and sent them to a CBP laboratory for testing. The resulting laboratory report, Report Number HT 2012 0137, dated March 12, 2012, concluded that the diameter of the 60000D S measures 5.0 millimeters (“mm”), and that the diameter of the 60000D Z measures 4.9 mm.
The subject merchandise was entered on January 26, 2012 under subheading 5607.49.15, HTSUS, which provides for: “Twine, cordage, ropes and cables, whether or not plaited or braided and whether or not impregnated, coated, covered or sheathed with rubber or plastics: Of polyethylene or polypropylene: Other: Other, not braided or plaited: Measuring less than 4.8 mm in diameter.” CBP liquidated the merchandise on May 25, 2012 in subheading 5607.49.25, HTSUS, as “Twine, cordage, ropes and cables, whether or not plaited or braided and whether or not impregnated, coated, covered or sheathed with rubber or plastics: Of polyethylene or polypropylene: Other: Other, not braided or plaited: Other.” Protestant filed this protest on July 6, 2012, claiming classification as entered.
ISSUE:
Whether the subject ropes are classified as having a diameter greater than or less than 4.8 mm?
LAW AND ANALYSIS:
Initially, we note that the matter protested 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. (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. 2002-12-100078 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) because it is alleged that the Port’s liquidation is inconsistent with prior CBP rulings. Specifically, the Protestant argues that the Port’s liquidation of the subject merchandise in subheading 5607.49.25, HTSUS, contradicts New York Ruling Letter (NY) N054335, dated March 16, 2009.
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
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, GRIs 2 through 6 may then be applied in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to GRIs 1 through 5.
The HTSUS provisions under consideration are as follows:
5607 Twine, cordage, ropes and cables, whether or not plaited or braided and whether or not impregnated, coated, covered or sheathed with rubber or plastics:
Of polyethylene or polypropylene:
5907.49 Other:
Other, not braided or plaited:
5907.49.15 Measuring less than 4.8 mm in diameter
5907.49.25 Other
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not 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 (Aug. 23, 1989).
We begin by noting that there is no dispute that the subject merchandise is described by the terms of heading 5607, HTSUS, at GRI 1. To the contrary, the dispute is at the 8-digit level of classification. Protestant argues that prior to importation, it requested and received a binding ruling on the exact merchandise at issue in this protest. Protestant notes that in the resulting ruling, NY N054335, the NCSD measured the submitted samples and found that none of them exceeded 4.8 mm in diameter. As a result, NY N054335 classified its merchandise in subheading 5607.49.15, HTSUS. Protestant argues that the port’s liquidation in a different subheading countermanded NY N054335, and that NY N054335 should take precedence over the laboratory’s findings.
In response, we note that it is a well-established principle that goods must be classified in their condition as imported. See Mita Copystar Am. v. United States, 21 F.3d 1079, 1082 (Fed. Cir. 1994); see also HQ H197758, dated April 27, 2012; HQ H154040, dated June 9, 2011; HQ H135335, dated April 18, 2011.
In the present case, the samples of the subject merchandise were taken from the shipment at issue. These samples were examined by a CBP laboratory, and their diameter was found to exceed 4.8 mm. See Laboratory Report Number HT 2012 0137. It is “well settled that the methods of weighing, measuring, and testing merchandise used by customs officers and the results obtained are presumed to be correct.” Aluminum Company of America v. United States, 60 C.C.P.A. 148, 151, 477 F.2d 1396, 1398 (1973). Thus, the samples measured by the laboratory in the present case are in contrast to the samples that were measured when NY N054335 was issued; the diameter of those samples was less than 4.8 mm. We note that NY N054335 was issued on March 16, 2009, nearly three years before the subject merchandise was imported. Any number of factors could have caused the difference in the diameter as measured. CBP is limited to classifying the merchandise as it is imported, and when it was imported, the subject merchandise was found to have a diameter that exceeded 4.8 mm. NY N054335 is binding for merchandise described therein or substantially similar merchandise, and the holding that is set forth applies only to the specific factual situation and merchandise description as identified in the ruling request. See 19 C.F.R. 177.9(b)(1). Furthermore, parties that receive binding rulings should be aware that the facts described in these rulings may be subject to periodic verification by CBP. See 19 CFR 177.9(b)(1).
In the present case, the subject merchandise is not substantially similar to that discussed in NY N054335. As a result, it is not described by the subheading in which NY N054335 classified the merchandise described therein. To the contrary, the instant merchandise is described by the terms of subheading 5607.49.25, HTSUS, which provides for: “Twine, cordage, ropes and cables, whether or not plaited or braided and whether or not impregnated, coated, covered or sheathed with rubber or plastics: Of polyethylene or polypropylene: Other: Other, not braided or plaited: Other.”
HOLDING:
By application of GRI 1, the subject polypropylene yarn is classified under heading 5607, HTSUS. By application of GRI 6, it is specifically provided for under subheading 5607.49.25, HTSUS, which provides for: “Twine, cordage, ropes and cables, whether or not plaited or braided and whether or not impregnated, coated, covered or sheathed with rubber or plastics: Of polyethylene or polypropylene: Other: Other, not braided or plaited: Other.” The general, column one, rate of duty is 9.8¢/kg + 5.3% ad valorem. The textile category is 201.
The designated textile and apparel category may be subdivided into parts. If so, the visa and quota requirements applicable to the subject merchandise may be affected. Since quota categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, we suggest your client check the Textile Status Report for Absolute Quotas at www.cbp.gov close to the time of shipment to obtain the most current information available.
You are instructed to DENY 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 International Trade, 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 B. Harmon, Director
Commercial and Trade Facilitation Division