HQ H273377
CLA-2 OT:RR:CTF:TCM HQ H273377 TSM
Port Director
Port of Buffalo, New York
U.S. Customs and Border Protection
726 Exchange Street
Suite 400
Buffalo, NY 14210
Attn: Kristin Bentson, Senior Import Specialist
Re: Protest and Application for Further Review No. 0901-15-100018; Classification of polyester woven fabric.
Dear Port Director:
The following is our decision regarding Protest and Application for Further Review No. 0901-15-100018, timely filed on February 3, 2015, on behalf of Khosla Profil Pvt. (“Protestant”) regarding the tariff classification of polyester woven fabric under the Harmonized Tariff Schedule of the United States (“HTSUS”). Pursuant to the Protestant’s request, a teleconference regarding this matter was held with members of my staff on March 13, 2017.
FACTS:
The subject fabric, style No. PO-333, is described as 100% polyester woven fabric, used exclusively as ground cover and in industrial containment berms. The total thickness of the product is 1.8 mm. A sample of the subject merchandise was examined by the U.S. Customs and Border Protection (“CBP”) laboratory. Based upon its examination, the CBP laboratory determined that the fabric at issue is composed of 100% by weight polyester man-made fibers and measures 1.8 mm thick.
The fabric at issue was originally entered on April 12, 2013 under subheading 5910.00.10, HTSUS, as “Transmission or conveyor belts or belting, of textile material, whether or not impregnated, coated, covered or laminated with plastics, or reinforced with metal or other material: Of man-made fibers.” On September 5, 2014, the subject merchandise was liquidated under subheading 5512.11.00, HTSUS, which provides for “Woven fabrics of synthetic staple fibers, containing 85 percent or more by weight of synthetic staple fibers: Containing 85 percent or more by weight of polyester staple fibers: Unbleached or bleached.”
Protestant claims that the correct classification is in subheading 5911.90.00, HTSUS, which provides for “Textile products and articles, for technical uses, specified in note 7 to this chapter: Other.”
ISSUE:
Whether the fabric at issue is classified in subheading 5512.11.00, HTSUS, or subheading 5911.11.90, HTSUS.
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 of the entry. (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. 0901-15-100018 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24 (b) because Protestant alleges that the decision against which the protest was filed involves questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts.
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 2 through 6 may then be applied in order.
Note 7 to Section XI provides the following:
For the purposes of this section, the expression "made up" means:
Cut otherwise than into squares or rectangles;
Produced in the finished state, ready for use (or merely needing separation by cutting dividing threads) without sewing or other working (for example, certain dusters, towels, tablecloths, scarf squares, blankets);
Cut to size and with at least one heat-sealed edge with a visibly tapered or compressed border and the other edges treated as described in any other subparagraph of this note, but excluding fabrics the cut edges of which have been prevented from unraveling by hot cutting or by other simple means;
Hemmed or with rolled edges, or with a knotted fringe at any of the edges, but excluding fabrics the cut edges of which have been prevented from unraveling by whipping or by other simple means;
Cut to size and having undergone a process of drawn thread work;
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
Knitted or crocheted to shape, whether presented as separate items or in the form of a number of items in the length.
Note 7 to Chapter 59 provides the following:
Heading 5911 applies to the following goods, which do not fall in any other heading of section XI:
Textile products in the piece, cut to length or simply cut to rectangular (including square) shape (other than those having the character of the products of headings 5908 to 5910), the following only:
(i) Textile fabrics, felt and felt-lined woven fabrics, coated, covered or laminated with rubber, leather or other material, of a kind used for card clothing, and similar fabrics of a kind used for other technical purposes, including narrow fabrics made of velvet impregnated with rubber, for covering weaving spindles (weaving beams);
(ii) Bolting cloth;
(iii) Straining cloth of a kind used in oil presses or the like, of textile material or of human hair;
(iv) Flat woven textile fabrics with multiple warp or weft, whether or not felted, impregnated or coated, of a kind used in machinery or for other technical purposes;
(v) Textile fabric reinforced with metal, of a kind used for technical purposes;
(vi) Cords, braids and the like, whether or not coated, impregnated or reinforced with metal, of a kind used in industry as packing or lubricating materials;
(b) Textile articles (other than those of headings 5908 to 5910) of a kind used for technical purposes (for example, textile fabrics and felts, endless or fitted with linking devices, of a kind used in papermaking or similar machines (for example, for pulp or asbestos-cement), gaskets, washers, polishing discs and other machinery parts).
The HTSUS provisions under consideration are as follows:
5512 Woven fabrics of synthetic staple fibers, containing 85 percent or more by weight of synthetic staple fibers:
Containing 85 percent or more by weight of polyester staple fibers:
5512.11.00 Unbleached or bleached
* * *
5911 Textile products and articles, for technical uses, specified in note 7 to this chapter:
5911.90.00 Other
* * *
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 at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
EN to heading 59.11, provides in pertinent parts, the following:
The textile products and articles of this heading present particular characteristics which identify them as being for use in various types of machinery, apparatus, equipment or instruments or as tools or parts of tools.
(B) TEXTILE ARTICLES OF A KIND USED FOR TECHNICAL PURPOSES
All textile articles of a kind used for technical purposes (other than those of headings 59.08 to 59.10) are classified in this heading and not elsewhere in Section XI (see Note 7 (b) to the Chapter); for example:
Any of the fabrics of (A) above which have been made up (cut to shape, assembled by sewing, etc.), for example, straining cloths for oil presses made by assembly of several pieces of fabric; bolting cloth cut to shape and trimmed with tapes or furnished with metal eyelets or cloth mounted on a frame for use in screen printing.
Textile fabrics and felts, endless or fitted with linking devices, of a kind used in paper making or similar machines (for example, for pulp or asbestos cement) (excluding machinery belts of heading 59.10).
Articles formed of linked monofilament yarn spirals and having similar uses to the textile fabrics and felts of a kind used in paper making or similar machines referred to in (2) above.
Gaskets and diaphragms for pumps, motors, etc., and washers (excluding those of heading 84.84).
Discs, sleeves and pads for shoe polishing and other machines.
Textile bags for oil presses.
Cords cut to length, with knots, loops, or metal or glass eyelets, for use on Jacquard or other looms.
Loom pickers.
Bags for vacuum cleaners, filter bags for air filtration plant, oil filters for engines, etc.
The textile articles of this heading may incorporate accessories in other material provided the articles remain essentially articles of textile.
* * *
In its submission, Protestant argues that the fabric at issue is classified in heading 5911, HTSUS, and subheading 5911.90.00, HTSUS, which provides for “Textile products and articles, for technical uses, specified in note 7 to this chapter: Other.” Initially, the Protestant did not provide any basis for this classification, except for stating that the Port allowed an earlier protest involving unrelated merchandise. The record indicates that in that instance, the merchandise at issue was belting fabric of heading 5910, HTSUS, which must be over 3 mm in thickness. See Note 6 to Chapter 59. We find that classification of unrelated merchandise is irrelevant here, as the instant fabric is less than 3mm in thickness.
Following the telephone conference, Protestant submitted a supplemental argument claiming that the fabric at issue is classified in heading 5911, HTSUS, since it satisfies the criteria of Note 7(b) to Heading 5911, HTSUS. Specifically, Protestant claims that the fabric at issue is imported in a finished condition for use as ground cover, with heat sealed edges to ensure against fraying and/or tearing during use. Protestant further claims that “the importation of multiple articles imported in the whole, such as rolls, does not preclude the individual items from being classified as articles, provided they are quantifiable and identifiable at the time of import.”
As the above-referenced notes provide, textile products are classified under subheading 5911.90, HTSUS, only if they are finished textile articles designed for use in various types of machinery, apparatus, equipment or instruments, or as tools or parts of tools. First, we note that this is not a finished textile article. Based on the supplemental information, the instant merchandise is formed by hot cutting. Note 7 (c) to Section XI specifically excludes fabrics formed by hot cutting from being classified as finished textile articles. Moreover, the fabric at issue is used as ground cover and in industrial containment berms. It is not intended for use in various types of machinery, apparatus or equipment. Therefore, we find that it is not classified in heading 5911, HTSUS.
Since the fabric at issue is a 100% polyester woven fabric, we find that it is classified in heading 5512, HTSUS, and subheading 5512.11.00, HTSUS, which provides for “Woven fabrics of synthetic staple fibers, containing 85 percent or more by weight of synthetic staple fibers: Containing 85 percent or more by weight of polyester staple fibers: Unbleached or bleached.”
HOLDING:
By application of GRIs 1 and 6, the 100% polyester woven fabric, used exclusively as ground cover and in industrial containment berms, is classified in heading 5512, HTSUS, it is specifically provided for in subheading 5512.11.00, HTSUS, which provides for “Woven fabrics of synthetic staple fibers, containing 85 percent or more by weight of synthetic staple fibers: Containing 85 percent or more by weight of polyester staple fibers: Unbleached or bleached.” The 2013 general rate of duty is 12% ad valorem.
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 website 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