CLA-2 RR:TC:TE 958921 ASM
Tariff No.: 5607.49.2500
Port Director
U.S. Customs Service
150 North Royal Street
Mobile, AL 36602
RE: Protest for Further Review on classification of “Chafing Yarn”
Protest No. 1901-96-100004
Dear Port Director:
This letter concerns our decision on the above-captioned protest involving the tariff classification of “Chafing Yarn”under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).
FACTS:
The subject article is described as “chafing yarn” for use as chafing gear on trawl nets. This “yarn” comes in coils (reels) of rope-like clusters of 30-555 decitex polyethylene monofilaments grouped together to form a single multifiliment yarn of 27 twist/meter. Approximately 57 of these multifilament yarns are twisted into the chafing yarn with 12 twists per meter with a final decitex of over 10,000. This “hank” of yarns is approximately 3/4 of an inch in diameter when taut.
The “yarn” was classified by Customs as twine, cordage, rope, and cables under subheading 5607.49.2500, HTSUSA, and liquidated under the general column one rate of duty at 25.8 cents/kilogram plus 17.7 percent ad valorem. The Protestent asserts that this article is properly classified under subheading 5911.90.0040, HTSUSA, as “Textile Products and Articles for Technical Uses, specified in note 7 to this chapter, cords, braids and the like, of a kind used in industry as packing or lubricating material.” Protestant also asserts that the item is a product of Mexico and is entitled to duty free treatment.
ISSUE:
Whether the product, identified as "chafing yarn" is properly classified as "twine, cordage, rope, and cables" under subheading 5607.49.2500, HTSUSA, or as “Textile Products and Articles for Technical Uses, specified in note 7 to this chapter, cords, braids and the like, of a kind used in industry as packing or lubricating material” under subheading 5911.90.0040, HTSUSA,
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA, is made in accordance with the General Rules of Interpretation (GRI’s) and in accordance with 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’s may then be applied. The Explanatory Notes to the Harmonized Commodity Description and Coding System (EN’s), which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI’s.
The competing provisions which have been asserted as the correct classification for this article are under subheadings 5607.49.2500, HTSUSA, as "twine, cordage, rope, and cables" and 5911.90.0040, HTSUSA, as “Textile Products and Articles for Technical Uses, specified in note 7 to this chapter, cords, braids and the like, of a kind used in industry as packing or lubricating material.”
In asserting that the product is classifiable under subheading 5911.90.0040, HTSUSA, Protestant relies on Note 7 to Chapter 59, HTSUSA, which states as follows:
7. Heading 5911 applies to the following goods, which do not fall in any other heading of section XI:
(a) 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):
* * *
(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;
The Protestant states that the product is classifiable under heading 5911 because it has met the criteria contained in Note 7, specifically, that the article be "1) a textile product; 2) dedicated for technical use; and 3) a lubricating material."
Protestant cites Customs New York Ruling (NY) 807398, dated March 10, 1995, as supporting a determination that the subject item is classifiable under subheading 5911.90.0040, HTSUSA, as a lubricating material. However, we feel that NY 807398 fails to provide support for this proposition and can be distinguished from the subject case. NY 807398 involved the classification of yarns which had been impregnated with a Polytetrafluorethylene (PTFE) paste dispersion as well as other ingredients such as graphite, paraffin oil, and silicone oil and it was determined that its principle and sole use was as a "packing braid" used to seal around rotating mechanical shafts in pumps and valves. In the instant case, the fibers comprising the chafing yarn have not been coated with any substance nor has it been asserted that the subject item is intended to be used as a packing material.
With regard to technical use, the Protestant has identified this product as "chafing yarn" which is used as "chafing gear" on trawl nets. According to the Federal Regulations that govern ground fish trawl under the Department of Commerce National Oceanic and Atmospheric Administration, 50 CFR Part 663.2(c), "chafing gear" is defined as "webbing or other material attached to the bottom (underside) or around the codend of a trawl net to protect the codend from wear." However, in Headquarters Ruling (HQ) 957059, dated January 18, 1995, Customs determined that "fabric" will be considered for "technical use" only if used directly or as a part of machinery or apparatus. In the subject case, the 6 foot length of loosely twisted rope is attached to the codend of a trawl net. We do not consider a trawl net as functioning either directly or indirectly as electrical or mechanical machinery.
Contrary to Protestant’s assertion, we do not believe that HQ 955244, dated April 4, 1994, advocates wide latitude in determining what products qualify under the technical use provision. Rather, this ruling merely determined that based on the EN’s to 5911, a painting booth designed to clean the air is considered an "apparatus" because it performs a function or executes a task independent from its use as work space. The filter mat at issue in the ruling was designed for use in this apparatus, and was classified as a textile product for technical use because the EN’s to 5911 specifically state that textile products of the heading are used in various types of apparatus. In the subject case, the trawl net to which the chafing gear is attached does not have a separate function or task from the work space, i.e., the trawling machinery affixed to the ship has been designed to drag netting from the back of a ship for the purpose of catching fish. Thus, we do not consider a trawl net as a separate "apparatus" within the meaning of the EN to 5911 and HQ 955244 would not apply to the product in question.
In HQ 952938, dated August 4, 1993, the product at issue consisted of a laminated nonwoven material used as a battery separator designed to separate the cathode from the anode in alkaline-electrolyte electrochemical batteries. The product in this ruling was determined to be an for technical use with an "instrument" (batteries) within the meaning of the EN’s to 5911 because it had been specifically designed and patented to separate substances that chemically react to produce the batteries’ power. In this ruling, the product has an integral use and is inserted into batteries as they are being produced. This is distinct from the subject case where chafing gear is separately attached to the codend of a net.
It is asserted by the Protestant that the chafing yarn functions as a lubricating material because when it comes into contact with other surfaces or through the action of the water, the yarn strands unravel and the filaments separate from each other forming a protective hair-like mat which functions as a lubricating material that protects the codend from wear and abrasion. Protestant cites the American Heritage Dictionary in defining a lubricant as “Any of various usually oily liquids or solids, such as grease, machine oil, or graphite, that reduce friction, heat, and wear when applied as a surface coating to moving parts.” It is argued that the subject chafing yarn is used to reduce heat, friction, and abrasion to the codend as it is towed through the water. However, it is important to note that the subject product, a loosely twisted textile rope, does not closely resemble the various oily liquids or smooth (untextured) solids, such as machine oil, grease, or graphite, which have been referenced as examples of lubricants in this definition.
Protestant also presents the following definitions in support of the argument that the subject chafing yarn is used as a "lubricating material":
A substance that reduces friction, heat, and wear
between two surfaces. (The Encyclopedia of Polymer
Science & Technology, Vol. 8, pg. 325, 1968)
A material used to separate two surfaces in relative
motion whose major purpose is to reduce friction
And wear and/or prevent damage. (Encyclopedia
of Tribology, C. Kajdas, pg. 184, 1990)
The Protestant has argued that the definition of "chafer" means to wear away by rubbing, and that "chafe" has an active role; it causes something else to be worn or rubbed away. Protestant thereby concludes that a "chafer" would be something that wears away or irritates something else by rubbing which distinguishes it from the nautical term "chafing yarn" used to describe a product that prevents wear and friction upon the net, i.e., it does not cause friction or wear, rather it prevents it.
Clearly, this product has been designed to provide protection to the net and is used in the fishing industry for that purpose. The chafing gear and net have separate functions in that the net catches fish and the chafing gear acts to protect the net from wear, much in the same way an elbow patch protects a sleeve. However, it is our determination that the type of protection offered by this product is not that of a "lubricating" material but as a "chafer." The word “chafer” is defined in Webster’s 3rd New International Dictionary as "a strip of fabric covering the head of a tire as a protection from chafing against the rim." In the subject case, once the loosely twisted rope has unraveled, it forms a fabric-like covering comprised of textile filament strands which protect the codend of the net from wear or "chafing."
Indeed, the common and commercial name for this product is "chafing yarn" and according to Protestant, the subject product has even been identified as "chafing gear" by the Department of Commerce National Oceanic and Atmospheric Administration pursuant to 50 CFR Part 663.2(c). It is also important to note that there is nothing in the Department of Commerce definition which would suggest that such an article should be referred to as "lubricating gear" or described as a "lubricating material."
Although it was asserted that HQ 085813 (January 10, 1990), and NY 807398 (March 10, 1995) support the proposition that "chafing yarn" is a "lubricant", the products described in those rulings were classified under heading 5911, HTSUSA, because the primary use was deemed to be as a "packing material" not as a "lubricating material." Furthermore, the goods in both rulings contained significant amounts of other nontextile, materials.
Protestant has described the subject chafing yarn as being "constructed of loosely twisted strands of polyethylene yarn which make up a 3/4" rope-like strand." Thus, it is our determination that the subject "chafing yarn" is classifiable pursuant to GRI 1 because it is most specifically described under subheading 5607.49.2500, HTSUSA, 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."
The Protestant argues that the classification of chafing yarn under the technical use provision of 5911.90.0040, HTSUSA, is more specific than classification of the product under 5607, HTSUSA, the provision for rope, cordage, and twine. However, as we have already noted, 5607, HTSUSA, clearly indicates that the heading includes ropes even if they have not been plaited or braided and it is our determination that heading 5607, HTSUSA, is intended to cover exactly the type of loosely twisted rope that is now in question. In addition, the EN’s for heading 5607 specifically state that ropes which have been produced by twisting are covered under this heading. Furthermore, it has already been noted that the subject chafing yarn has a final decitex of over 10,000 and the EN’s for Section XI, Table I under General Note(I)(B)(2), at page 781, state that man-made fiber yarns not put up for retail sale, and measuring 10,000 over decitex, are classifiable in heading 5607.
For reasons already stated above, we do not believe that the product in question is accurately defined as a lubricant. As such, we do not believe that the technical use provision of 5911.90.0040, HTSUSA, accurately describes the product’s use. Nor are the cases cited by Protestant applicable in this instance: Hartog Foods International Inc. v. United States, 15 CIT 475 (1991); and M. Pressner & Co. v. United States, 42 CCPA 48, 49-50 (1954), wherein it was held that tariff headings that address a technical use prevail over an eo nomine provision.
HOLDING:
The product identified as "chafing yarn" is classifiable under subheading 5607.49.2500, HTSUSA, 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." This provision is dutiable at the general column one rate of 22.3 cents/kilogram plus 12.1 percent ad valorem. The textile restraint category is 201.
The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent negotiations and changes, to obtain the most current information available, we suggest that you check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels), an issuance of the U.S. Customs Service, which is updated weekly and is available at your local Customs office.
Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact your local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division