OT:RR:CTF:FTM H302973 TJS
Port Director
Port of Chicago
U.S. Customs & Border Protection
610 South Canal Street
Chicago, IL 60607
Attn: Tinamaria Martell, Import Specialist
Re: Application for Further Review of Protest No. 3901-18-100709; Classification of Nylon Belts in Casings
Dear Port Director:
This is in reference to the Application for Further Review (“AFR”) of Protest No. 3901-18-100709, timely filed on June 27, 2018, by Seko Customs Brokerage, Inc., on behalf of U.S. Weights Inc. (“U.S. Weights” or “Protestant”), regarding U.S. Customs and Border Protection’s (“CBP”) tariff classification of certain nylon belts in casings under the Harmonized Tariff Schedule of the United States (“HTSUS”). In addition to the information provided with the protest, we have also considered supplemental information provided by Protestant via email, dated August 4, 2020.
FACTS:
The merchandise at issue consists of five models of retractable nylon belts encased in a plastic or steel carriage/cassette. The items are used to control crowds, direct the flow of foot traffic, or protect a closed area. Model 7B-6499-00 consists of a woven nylon belt in a plastic carriage, which ultimately goes into a post for free-standing use. According to the Protestant, for model 7B-6499-00, the nylon belt is 7.5 feet long and weighs 0.47 kg and the plastic carriage weighs 0.14 kg. Models U2500CAU, U2500CYB, U2501CAU, and U2501CYB (collectively, “Wall Mount Barriers”) consist of a woven nylon belt in a steel carriage, which is wall-mounted to serve as a barrier to a certain area. According to the U.S. Weight website, the designation “CAU” indicates the belt is printed with “Caution – Do Not Enter” and the designation “CYB” indicates the belt is printed in yellow and black stripes. The belt in models U2500CAU and U2500CYB measures 8 feet and weighs 0.05 kg, and the steel carriage weighs 0.20 kg. The belt in models U2501CAU and U2501CYB measures 13 feet and weighs 0.09 kg, and the steel carriage weighs 0.26 kg. According to the Protestant, the nylon fabric comprising the belts in all the models is not impregnated, coated, covered or laminated with plastic. The belts also have an end clip that attaches to a piece on a wall or another carriage. Below are photos of the Wall Mount Barriers taken from the U.S. Weight website.
The subject merchandise was entered on April 7, 2017 under subheading 5903.10.15, HTSUS, which provides for, “Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902: With poly(vinyl chloride): Of man-made fibers: Fabrics specified in note 9 to section XI: Over 60 percent by weight of plastics.” The merchandise was liquidated on December 29, 2017 under subheading 6307.90.9889, HTSUS, which provides for “Other made up articles, including dress patterns: Other: Other: Other: Other: Other.” Protestant asserts that model 7B-6499-00 should be classified as entered under subheading 5903.10.15, HTSUS, and that the Wall Mount Barriers are classified under subheading 8302.41.9045, HTSUS, which provides for “Base metal mountings, fittings and similar articles suitable for furniture, doors, staircases, windows, blinds, coachwork, saddlery, trunks, chests, caskets or the like; base metal hat racks, hat-pegs, brackets and similar fixtures; castors with mountings of base metal; automatic door closers of base metal; and base metal parts thereof: Other mountings, fittings and similar articles, and parts thereof: Suitable for buildings: Other: Other: Suitable for interior and exterior doors (except garage, overhead or sliding doors): Other.”
ISSUE:
What is the tariff classification of the nylon belts in casings at issue?
LAW AND ANALYSIS:
Initially, we note that the matter 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. See 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. 3901-18-100709 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 CBP or his designee or by the Customs courts.
Classification of goods under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI”). GRI 1 provides that the 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 GRI may then be applied.
The 2017 HTSUS headings under consideration are as follows:
5903: Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902 . . .
6307: Other made up articles . . .
8302: Base metal mountings, fittings and similar articles suitable for furniture, doors, staircases, windows, blinds, coachwork, saddlery, trunks, chests, caskets or the like; base metal hat racks, hat-pegs, brackets and similar fixtures; castors with mountings of base metal; automatic door closers of base metal; and base metal parts thereof . . .
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Note 7 to Section XI (Textiles and Textile Articles), HTSUS, provide:
7. For the purposes of this section, the expression “made up” means:
(a) Cut otherwise than into squares or rectangles;
(b) 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);
(c) 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;
(d) 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;
(e) Cut to size and having undergone a process of drawn thread work;
(f) 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
(g) Knitted or crocheted to shape, whether presented as separate items or in the form of a number of items in the length.
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GRI 3(a) and (b) provide as follows:
When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.
(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
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In understanding the language of the HTSUS, the Explanatory Notes (“EN”) of the Harmonized Commodity Description and Coding System may be utilized. The EN, 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 Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989).
The EN to GRI 3(b) state, in pertinent part:
This second method relates only to:
Mixtures.
Composite goods consisting of different materials.
Composite goods consisting of different components.
Goods put up in sets for retail sales.
It applies only if Rule 3(a) fails.
In all these cases the goods are to be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.
For the purposes of this Rule, composite goods made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts.
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The subject merchandise is made up of different components, i.e., a woven nylon belt and either a plastic or steel carriage, which are classified in various headings of the HTSUS. Because the subject merchandise is prima facie classifiable under more than one heading, GRI 1, HTSUS, cannot be used as a basis for classification and GRI 3, HTSUS, is implicated. Specifically, GRI 3(b) directs that composite goods made up of different components shall be classified as if they consisted of the material or component that gives them their essential character. According to EN IX for GRI 3(b), a “composite good” is a good that is made up of different components that are attached to each other to form a practically inseparable whole. The subject merchandise is a composite good because the nylon belt and plastic or steel carriage are attached to form an inseparable whole. Therefore, GRI 3(b) requires that classification of the subject merchandise be based on the material or component that imparts the good with its essential character.
The “essential character” of an article is “that which is indispensable to the structure, core or condition of the article, i.e., what it is.” Structural Industries v. United States, 360 F. Supp. 2d 1330, 1336 (Ct. Int’l Trade 2005). EN VIII to GRI 3(b) explains that “[t]he factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of the constituent material in relation to the use of the goods.” Court decisions on the essential character for GRI 3(b) purposes have looked primarily to the role of the constituent material in relation to the use of the goods. See Estee Lauder, Inc. v. United States, 815 F. Supp. 2d 1287, 1296 (Ct. Int’l Trade 2012); Structural Industries, 360 F. Supp. 2d 1330; Conair Corp. v. United States, 29 CIT 888 (2005); Home Depot USA, Inc. v. United States, 427 F. Supp. 2d 1278 (Ct. Int’l Trade 2006), aff’d 491 F.3d 1334 (Fed. Cir. 2007).
Protestant asserts that model 7B-6499-00 is classified under subheading 5903.10.15, HTSUS. We note that the belt component in all the models is classified in the same provision as they are comprised of the same nylon fabric, differing only in length. Heading 5903, HTSUS, covers textile fabrics impregnated, coated, covered or laminated with plastics. Because the nylon belt fabric is not impregnated, coated, covered or laminated with any plastic, it does not meet the terms of heading 5903, HTSUS. Additionally, the nylon belt fabric is not imported in bulk on the roll, but is cut to length and further assembled with the carriage and clip. Therefore, we find that model 7B-6499-00, consisting of a woven nylon belt in a plastic carriage, is ineligible for classification under heading 5903, HTSUS.
Protestant also asserts that the Wall Mount Barriers are classified under heading 8302, HTSUS, as base metal mountings, fittings and similar articles. Protestant does not provide arguments to support classification under this heading, but we note that the steel carriage weighs more than the belt component. In New York Ruling Letter (“NY”) J82762, dated April 10, 2003, CBP classified barriers with self-reeling belts based on the component that comprised the greatest weight. The product in NY J82762, called “Easyline Crowd Control Posts,” consisted of cast iron bases with aluminum posts and self-reeling belts. The posts were to be used in public places to create queues. CBP classified the product in heading 7326, HTSUS, as articles of iron or steel because the iron base comprised the principle weight. However, the three products at issue are distinguishable from the Easyline Crowd Control Posts because they are not imported with cast iron bases and aluminum posts. The Wall Mount Barriers are mounted to walls and model 7B-6499-00 is inserted into a post after importation. We note that no heading in the HTSUS specifically provides for nylon belts in casings.
In NY I88082, dated November 18, 2002, CBP classified an “Aisle Blocker Set,” composed of two PVC-backed textile signs with plastic support rods and hooks at each corner, allowing the signs to be attached to pallet racking, walls, etc. Printed on each sign was a warning that access to the aisle was temporarily restricted. In determining whether the signs were classified as printed matter in heading 4911, HTSUS, or other made up textile articles in heading 6307, HTSUS, CBP noted that the substantial size, strength, and durability of the signs enabled them to carry out their function – blocking an aisle – by creating a physical barrier. CBP determined that the printed warning was of secondary importance to the physical nature of the barrier that was created. Therefore, CBP classified the Aisle Blocker Set in subheading 6307.90.9889, HTSUS.
Similar to the Aisle Blocker Set in NY I88082, the subject nylon belts in casings are used as physical barriers to close off restricted areas, as well as queue lines and control crowds. The nylon belt creates the barrier and can be printed with warnings to reinforce the desired controlled action. Although the carriage plays an important role in housing the belt and attaching it to a wall or post, the carriage does not function as the barrier. Based on the meaning of “essential character” under GRI 3(b), we find that the nylon belt performs the primary role of the product as a barrier. Therefore, we find that the nylon belt imparts the essential character of the product.
EN 63.07 provides that this heading covers “made up” articles of any textile material which are not included more specifically in any other headings of Section XI or elsewhere in the Nomenclature. Because the belt fabric is cut otherwise than into squares or rectangles and further assembled, the belt is considered “made up” per Note 7(a) and (f) to Section XI, HTSUS. This is consistent with prior rulings wherein CBP classified textile straps further assembled as other made up articles under heading 6307, HTSUS. See Headquarters Ruling Letter (“HQ”) H302557 (Aug. 21, 2019) (elastic webbing with plastic clips sewn at each end); NY N299554 (Aug. 22, 2018) (cell phone strap made from narrow woven elastic fabric with two metal clamps attached onto both ends); and NY 883806 (Mar. 26, 1993) (“Sport Strap” made of nylon webbing, measuring 12 feet long by 1 inch wide, with an adjustable metal buckle and polyurethane-covered hooks). Thus, the nylon belt component of the subject merchandise is classified in heading 6307, HTSUS, as other made up textile articles. Accordingly, the nylon belts in casings are classified under subheading 6307.90.9889, HTSUS, which provides for “Other made up articles, including dress patterns: Other: Other: Other: Other: Other.”
HOLDING:
By application of GRI 1 and 3, the nylon belts in casings, models 7B-6499-00, U2500CAU, U2500CYB, U2501CAU, and U2501CYB are classified under heading 6307, HTSUS, and specifically subheading 6307.90.9889, HTSUS, which provides for “Other made up articles, including dress patterns: Other: Other: Other: Other: Other.” The 2017 column one, general rate of duty is 7% 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 of Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (“CROSS”) at https://rulings.cbp.gov/, which can be found on the CBP website at http://www.cbp.gov and other methods of public distribution.
Sincerely,
For Craig T. Clark, Director
Commercial and Trade Facilitation Division