OT:RR:CTF:FTM H335561 TSM
Center Director
CEE – Apparel, Footwear and Textiles
U.S. Customs and Border Protection
797 S. Zaragosa Rd.
El Paso, TX 79907
Attn: Karen Matei, Supervisory Import Specialist
Re: Request for Internal Advice; Tariff Classification of “Nippies Tape”
Dear Center Director:
This letter is in response to your November 9, 2023, request for Internal Advice (“IA”) made pursuant to 19 C.F.R. § 177.11(b)(2). The IA concerns the tariff classification under the Harmonized Tariff System of the United States (“HTSUS”) of a certain adhesive tape described as “Nippies Tape,” imported by Charope, Inc.
FACTS:
The merchandise at issue is an adhesive tape with release paper on the back, described as “Nippies Tape.” A sample of the adhesive tape was sent to a U.S. Customs and Border Protection (“CBP”) Laboratory for testing. The results, reported in Laboratory Report No. SV20231943, dated October 5, 2023, show in relevant part that the subject adhesive tape is comprised of a knit fabric that has an adhesive and release paper on one surface. The adhesive is an acrylate material, and the knit textile is composed of nylon filaments and spandex. By weight, the sample without the release paper is composed of 87% knit textile and 13% adhesive. The knit textile is composed of 80% nylon and 20% spandex. A sample of the adhesive tape at issue was also reviewed by this office.
ISSUE:
What is the tariff classification of the “Nippies Tape”?
LAW AND ANALYSIS:
Classification under the HTSUS is determined in accordance with the General Rules of Interpretation (“GRI”). 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. 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 review are as follows:
5903 Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902
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6002 Knitted or crocheted fabrics of a width not exceeding 30 cm, containing by weight 5 percent or more of elastomeric yarn or rubber thread, other than those of heading 6001
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Note 1(h) to Section XI provides in relevant part as follows:
This section does not cover:
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(h) Woven, knitted or crocheted fabrics, felt or nonwovens, impregnated, coated, covered or laminated with plastics, or articles thereof, of chapter 39
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Note 7 to Section XI provides as follows:
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 unravelling 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.
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Note 8 to Section XI provides as follows:
For the purposes of chapters 50 to 60:
Chapters 50 to 55 and 60 and, except where the context otherwise requires, chapters 56 to 59, do not apply to goods made up within the meaning of note 7 above; and
Chapters 50 to 55 and 60 do not apply to goods of chapters 56 to 59
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Note 2 to Chapter 39 provides in relevant part:
This chapter does not cover:
(p) Goods of section XI (textiles and textile articles)
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Note 3 to Chapter 56 provides in relevant part:
Headings 5602 and 5603 cover respectively felt and nonwovens, impregnated, coated, covered or laminated with plastics or rubber whatever the nature of these materials (compact or cellular).
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Note 1 to Chapter 59 provides:
Except where the context otherwise requires, for the purposes of this chapter the expression “textile fabrics” applies only to the woven fabrics of chapters 50 to 55 and headings 5803 and 5806, the braids and ornamental trimmings in the piece of heading 5808 and the knitted or crocheted fabrics of headings 6002 to 6006.
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Note 2 to Chapter 59 provides as follows:
Heading 5903 applies to:
Textile fabrics, impregnated, coated, covered or laminated with plastics, whatever the weight per square meter and whatever the nature of the plastic material (compact or cellular), other than:
Fabrics in which the impregnation, coating or covering cannot be seen with the naked eye (usually chapters 50 to 55, 58 or 60); for the purpose of this provision, no account should be taken of any resulting change of color;
Products which cannot, without fracturing, be bent manually around a cylinder of a diameter of 7 mm, at a temperature between 15°C and 30°C (usually chapter 39);
Products in which the textile fabric is either completely embedded in plastics or entirely coated or covered on both sides with such material, provided that such coating or covering can be seen with the naked eye with no account being taken of any resulting change of color (chapter 39);
Fabrics partially coated or partially covered with plastics and bearing designs resulting from these treatments (usually chapters 50 to 55, 58 or 60);
Plates, sheets or strip of cellular plastics, combined with textile fabric, where the textile fabric is present merely for reinforcing purposes (chapter 39); or
Textile products of heading 5811.
Fabrics made from yarn, strip or the like, impregnated, coated, covered or sheathed with plastics, of heading 5604.
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The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the “official interpretation of the Harmonized System” at the international level. See 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). While neither 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 id.
General EN to Chapter 39, provides in relevant part:
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Plastics and textile combinations
Wall or ceiling coverings which comply with Note 9 to this Chapter are classified in heading 39.18. Otherwise, the classification of plastics and textile combinations is essentially governed by Note 1 (h) to Section XI, Note 3 to Chapter 56 and Note 2 to Chapter 59.
The following products are also covered by this Chapter:
Felt impregnated, coated, covered or laminated with plastics, containing 50% or less by weight of textile material or felt completely embedded in plastics;
Textile fabrics and nonwovens, either completely embedded in plastics or entirely coated or covered on both sides with such material, provided that such coating or covering can be seen with the naked eye with no account being taken of any resulting change of colour;
Textile fabrics, impregnated, coated, covered or laminated with plastics, which cannot, without fracturing, be bent manually around a cylinder of a diameter of 7 mm, at a temperature between 15 °C and 30 °C;
Plates, sheets and strip of cellular plastics combined with textile fabrics (as defined in Note 1 to Chapter 59), felt or nonwovens, where the textile is present merely or reinforcing purposes.
In this respect, unfigured, unbleached, bleached or uniformly dyed textile fabrics, felt or nonwovens, when applied to one face only of these plates, sheets or strip, are regarded as serving merely for reinforcing purposes. Figured, printed or more elaborately worked textiles (e.g., by raising) and special products, such as pile fabrics, tulle and lace and textile products of heading 58.11, are regarded as having a function beyond that of mere reinforcement.
Plates, sheets and strip of cellular plastics combined with textile fabric on both faces, whatever the nature of the fabric, are excluded from this Chapter (generally heading 56.02, 56.03 or 59.03).
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The adhesive tape at issue consists of a combination of textile and plastic materials (i.e., textile tape and adhesive). Accordingly, we must first determine whether it is classified in Chapter 39, HTSUS, which provides for plastics and articles thereof. In this regard, we note that the EN to Chapter 39 provides in relevant part that the following categories of plastics and textile products are classified in Chapter 39: (1) felt impregnated, coated, covered or laminated with plastics; (2) textile fabrics and nonwovens, either completely embedded in plastics or entirely coated or covered on both sides with plastics that can be seen with the naked eye; (3) textile fabrics that are coated or laminated with plastics and cannot be bent manually around a cylinder of 7 mm in diameter; and (4) plates, sheets and strip of cellular plastics combined with textile fabrics, felt or nonwovens, where the textile is present merely for reinforcing purposes. Upon review, we find that the referenced four categories of products are not descriptive of the adhesive tape at issue, because the tape is not constructed of felt, it is not completely embedded in or covered on both sides with plastics, it is not coated or laminated with plastics so as not to be bent manually around a cylinder of 7 mm in diameter, and it is not constructed of plates, sheets, or strip of plastics. Accordingly, we conclude that the adhesive tape at issue is not classified in Chapter 39, HTSUS.
The EN to Chapter 39 also provides in relevant part that the classification of plastics and textile combinations is essentially governed by Note 1(h) to Section XI, Note 3 to Chapter 56, and Note 2 to Chapter 59. Note 1(h) to Section XI provides that this section does not cover woven, knitted or crocheted fabrics, felt or nonwovens, impregnated, coated, covered or laminated with plastics, or articles thereof, of Chapter 39. As discussed above, the adhesive tape at issue is not classified in Chapter 39. Therefore, Note 1(h) to Section XI does not exclude it from classification in Section XI. However, because Note 8 to Section XI provides that Chapters 50 to 55 and 60 and, except where the context otherwise requires, Chapters 56 to 59, do not apply to goods made up within the meaning of Note 7 to Section XI, we must determine whether the adhesive tape at issue is made up within the meaning of Note 7 to Section XI. This Note explains the term “made up.”
Upon review, we find that the adhesive tape at issue is not a made up article. Because it is not cut otherwise than into squares or rectangles, it is excluded from being considered “made up” as defined by Note 7(a). Similarly, the adhesive tape is not “made up” under Note 7(b) to Section XI. To be “made up” under Note 7(b), an article must be “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).” The adhesive tape at issue is not “produced in the finished state” for two reasons. First, CBP construes the term “produced in the finished state” as strictly limited to textiles that essentially come off the loom in their final forms and require only minor, if any, manipulation necessary to produce the end product. See Headquarters Ruling Letter (“HQ”) H192949, dated December 21, 2012; HQ 089592, dated September 20, 1991; and HQ 083171, dated December 15, 1989. Here, the adhesive tape is not finished when the knit textile fabric is removed from the loom, because it is subsequently covered with adhesive and release paper. Because of the subsequent manipulations after removal from the loom before becoming the finished product, the adhesive tape is not “produced in the finished state.” We also find that the subject adhesive tape is not “made up” under Note 7(c), (d), or (f) to Section XI, HTSUS, because it is not “cut to size and with at least one heat-sealed edge,” “hemmed or with rolled edges, or with a knotted fringe at any of the edges,” or “cut to size or having undergone a process of thread work.” Similarly, the adhesive tape is not made up under Note 7(f), because it is not “assembled by sewing, gumming or otherwise.” While assembly typically involves operations necessary to combine several components that work together to create an article, we find that simple application of adhesive and release paper to textile fabric is not one of such operations within the meaning of Note 7(f). Finally, the adhesive tape is not “made up” under Note 7(g), because a continuous roll of fabric is not recognizable as “separate items or a number of items in the length.” See HQ 954978, dated October 21, 1994 (finding that one continuous tubular length of fabric is not recognizable as a “number of items in the length”). Accordingly, the adhesive tape at issue is not made up within the meaning of Note 7 to Section XI and therefore is not excluded from classification in Chapters 50-60 pursuant to Note 8 to Section XI.
As referenced above, the classification of plastics and textile combinations is also governed by Note 3 to Chapter 56 and Note 2 to Chapter 59. Note 3 to Chapter 56 provides in relevant part that headings 5602 and 5603 cover felt and nonwovens, impregnated, coated, covered or laminated with plastics or rubber whatever the nature of these materials (compact or cellular). Upon review, we conclude that headings 5602 and 5603 are not applicable, because the textile portion of the adhesive tape under consideration consists of knit fabric. Note 2 to Chapter 59, provides in relevant part that heading 5903, HTSUS, applies to textile fabrics, impregnated, coated, covered or laminated with plastics, other than fabrics in which the impregnation, coating or covering cannot be seen with the naked eye (usually chapters 50 to 55, 58 or 60). Upon review of the sample, we have determined that the plastic adhesive covering applied to the textile tape cannot be seen with the naked eye. Therefore, we conclude that the adhesive tape at issue is not classified in heading 5903, HTSUS. Consistent with Note 2 to Chapter 59, fabrics with impregnation that cannot be seen with the naked eye are generally provided for in Chapters 50 to 55, 58 or 60, HTSUS. Chapters 50 to 55, and 58, do not cover knitted fabrics and the adhesive tape at issue is comprised of a knitted fabric, therefore these Chapters are not applicable. However, because Chapter 60 covers knitted or crocheted fabrics and the adhesive tape is comprised of a knitted fabric consisting of 80% nylon and 20% spandex, we find that it is provided for in Chapter 60.
Based on the foregoing, we conclude that the adhesive tape at issue is classified in Chapter 60. Specifically, it is classified in heading 6002, HTSUS, and in subheading 6002.40.80, HTSUS, which provides for “Knitted or crocheted fabrics of a width not exceeding 30 cm, containing by weight 5 percent or more of elastomeric yarn or rubber thread, other than those of heading 6001: Containing by weight 5 percent or more of elastomeric yarn but not containing rubber thread: Other.”
HOLDING:
By application of GRIs 1 and 6, the adhesive tape under consideration is classified in heading 6002, HTSUS, and specifically in subheading 6002.40.80, HTSUS, which provides for “Knitted or crocheted fabrics of a width not exceeding 30 cm, containing by weight 5 percent or more of elastomeric yarn or rubber thread, other than those of heading 6001: Containing by weight 5 percent or more of elastomeric yarn but not containing rubber thread: Other.” The 2024 column one, general rate of duty is 8% ad valorem.
Duty rates are provided for convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at https://hts.usitc.gov/current.
You are to mail this decision to the requester no later than 60 days from the date of the decision. At that time, 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/, and other methods of public distribution.
Sincerely,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division