CLA-2:RR:CR:TE: 967321 BtB
David A. Riggle, Esq.
Riggle and Craven
8430 West Bryn Mawr Avenue
Suite 525
Chicago, IL 60631
RE: Revocation of NY F83890; certain ScentBlocker® three-layer fabric with activated-carbon particles embedded in one layer
Dear Mr. Riggle:
This is in reconsideration of New York Ruling Letter (NY) F83890, dated March 24, 2000, issued to the Customs broker for Robinson Laboratories Inc. (“Robinson”) by the U.S. Customs Service, now the Bureau of Customs and Border Protection (hereinafter “CBP”), concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of certain ScentBlocker® fabric made in England. As you now represent Robinson in this matter, this letter is addressed to you.
We have reviewed NY F83890 and have determined that the classification of the fabric provided is incorrect. This ruling sets forth the correct classification of the fabric. Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation of NY F83890 was published in the Customs Bulletin, Volume 39, Number 35, on August 24, 2005. CBP received no comments during the notice and comment period that closed on August 23, 2005.
FACTS:
On February 24, 2000, Robinson’s Customs broker requested a tariff classification ruling on the ScentBlocker® fabric that is the subject of NY F83890. In NY F83890, this fabric is described as “a laminated fabric consisting of an outer polyester knit fabric and an inner non-woven fabric impregnated with carbon for use in manufacturing scent eliminating hunting clothes.” The original sample of the fabric and any accompanying literature were destroyed on September 11, 2001, in our former 6 World Trade Center office in New York City.
Notice of Proposed Revocation of NY F83890 was originally published in the Customs Bulletin, Volume 38, Number 21, on May 19, 2004. As the original sample and literature were destroyed, the proposed ruling by CBP to revoke NY F83890 (Headquarters Ruling (HQ) 966423) was drafted using the limited available information about the fabric. During the Notice and Comment Period of Proposed Revocation, you contacted and informed us that several of our statements in HQ 966423 regarding the construction of the ScentBlocker® fabric that is the subject of NY F83890 were not accurate. On Robinson’s behalf, you provided samples of garments made with the fabric (the garments that are the subject of HQ 967320) and literature to this office on July 20, 2004, along with arguments against revocation of NY F83890. A Withdrawal of Proposed Revocation of NY F83890 was published in the Customs Bulletin, Volume 38, Number 34, on August 18, 2004. We met with you on February 3, 2005 to discuss your arguments and you provided CBP with additional information and arguments against revocation on February 21, 2005.
A sample of the fabric was taken from the garments that you provided. Laboratory analysis of this fabric showed that it is composed of three layers, not two layers as set forth in NY F83890. The fabric’s outer layer, printed in a camouflage pattern, is made of a weft knit interlock construction and is composed wholly of polyester. The middle layer is composed of activated carbon particles embedded in a nonwoven polyester construction. The inner layer has a weft knit construction and is composed wholly of polyester. The three layers are held together with adhesive material that is not visible in the cross section. The fabric has the following composition by weight of the entire fabric: top printed layer: 50.9%, middle nonwoven layer: 15.4%, inner layer: 21.8%, activated carbon and binder: 11.9%.
The fabric is used to manufacture garments designed to be worn while hunting. The activated carbon particles in the fabric block the human scent of the wearer from wildlife while hunting. Information that you provided states that the scent blocking properties of the carbon particles do not become exhausted. Rather, these properties last for the life of the garments made of the fabric and are reactivated by drying the garments in the dryer following each washing.
In NY F83890, CBP classified the fabric in subheading 6815.10.0000, HTSUSA, which provides for “Articles of stone or of other mineral substances (including carbon fibers, articles of carbon fibers and articles of peat), not elsewhere specified or included: Nonelectrical articles of graphite or other carbon.” For reasons set forth below, you argue that the fabric was properly classified in NY F83890.
ISSUE:
Whether the fabric is properly classified in heading 6815, HTSUSA, as an article of other mineral substances not elsewhere specified or included, or in Section XI, HTSUSA, as textile fabric.
LAW AND ANALYSIS:
Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation of the Harmonized System at the international level (for the 4-digit headings and the 6-digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. While neither legally binding nor dispositive of classification issues, the EN provide commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).
The fabric at issue cannot be classified pursuant to GRI 1 since more than one heading describes it. Three headings describe the fabric. First, heading 6815, HTSUSA, which provides for “Articles of stone or of other mineral substances (including carbon fibers, articles of carbon fibers and articles of peat), not elsewhere specified or included;” second, heading 6006, HTSUSA, which provides for “Other knitted and crocheted fabrics;” and finally, heading 5603, HTSUSA, which provides for “Nonwovens, whether or not impregnated, coated, covered, or laminated” describe the fabric. However, while the first part of heading 6815, HTSUSA, describes the fabric as an article of other mineral substances, the fabric is not an article of carbon fibers (as it contains carbon particles, not carbon fibers) and therefore, the parenthetical part of the heading does not describe the fabric.
We do not consider the fabric to be described by heading 3802, HTSUSA (which provides for, among other things, activated carbon), since this provision does not cover articles of activated carbon, but merely the substance itself. Also, we do not consider the fabric to be described by heading 5903, HTSUSA (which provides for “Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902”) because there is no plastic visible in its cross section.
As the articles cannot be classified pursuant to GRI 1, we apply the remaining GRI, in order. GRI 2(a) pertains to incomplete or unfinished articles and is not relevant in this instance. GRI 2(b) states:
Any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances [and] any reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material or substance. The classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.
The fabric at issue is a good consisting of more than one material or substance, those being knitted polyester, nonwoven polyester and carbon particles. By application of GRI 2(b), they are prima facie classifiable under more than one heading. Specifically, the fabric is prima facie classifiable under heading 6815, HTSUSA, as an article of other mineral substances not elsewhere specified or included, heading 6006, HTSUSA, as other knitted fabric, and heading 5603, HTSUSA, as impregnated nonwoven fabric. Accordingly, classification must be made according to the principles of GRI 3. GRI 3(a) states, in pertinent part:
3. 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 … 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 . . . which cannot be classified by reference to 3(a),
shall be classified by as if they consisted of the material or component
which gives them their essential character, insofar as this criterion is
applicable.
* * *
Under GRI 3(a), the three headings that refer to the fabric must be regarded as equally specific since each refers to only part of the materials from which the fabric is made. Since the headings are to be considered equally specific, classification must be determined by application of GRI 3(b). The pertinent portions of the EN to GRI 3(b) provide as follows:
(VII) 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.
(VIII) 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.
The literature that you provided and Robinson’s website refer to the article at issue as “fabric.” The patent grants issued on articles of apparel (“odor absorbing clothing”) made with the fabric also refer to the article at issue as “fabric.” Nevertheless, you argue that the article at issue is not properly classified as fabric because its “essential character” is imparted by the activated carbon particles in it. In support of this position, you have emphasized that the fabric (all three layers) is merely a medium for delivering the scent blocking properties of the carbon particles. Also, in support of this position, you have provided information emphasizing that fabric incorporating activated carbon particles is substantially more expensive than fabric without such particles.
In searching for the material that gives the fabric its essential character, we must review each of the fabric’s layers. The essential character of the fabric’s outer and inner layers is imparted by the knitted polyester, the only material in those layers. The middle layer, however, is composed of activated carbon particles and nonwoven polyester. The EN to heading 5603, in pertinent part, states that:
Nonwovens may be dyed, printed, impregnated, coated, covered or laminated. Those covered on one or both surfaces (by sewing, gumming or by any other process) with textile fabric or with sheets of any other material are classified in this heading only if they derive their essential character from the nonwoven.
The EN states, that heading 5603 excludes: “Nonwovens, impregnated, coated or covered with substances or preparations … where the textile material is present merely as a carrying medium.” In the case at hand, we find that the nonwoven in the middle layer functions only as a carrying medium for the activated carbon particles. Therefore, we do not find that the nonwoven imparts the essential character into the middle layer. Rather, we find that the activated carbon particles impart the essential character into the middle layer. Accordingly, the middle layer of the fabric would separately be classifiable under heading 6815, HTSUSA.
We recognize that the activated carbon particles embedded in the middle layer of the fabric provide it with its scent blocking properties, the feature that would likely prompt purchase and use of the fabric. We also accept the validity of the information that you presented stating that fabric incorporating activated carbon particles is substantially more expensive than similar fabric without such particles. And, we acknowledge that the fabric does act as a medium for delivering scent blocking properties of the carbon particles.
However, the merchandise at issue is, in and of itself, fabric that will be used to manufacture clothing designed for hunting. This is how the article at issue is described by Robinson and in patent grants on articles of apparel made with the fabric. While the merchandise does act as a medium for the carbon’s properties, it could be used as fabric even without the carbon particles in the middle layer. Furthermore, based on our research and information submitted by the patent-holder of the technology that Robinson incorporates in the fabric, we understand that garments could not be constructed wholly of carbon fibers, as they are too brittle and could not be constructed into a garment. Limitations on the use of carbon fibers in garments therefore necessitate using constructions like that of the fabric at issue, with carbon particles embedded in a textile layer. The outer layer’s knit fabric is more substantial than any of the other layers, weighing more than double the inner layer, which is the next heaviest layer. The outer layer forms the surface of the fabric and its camouflage printing adds to the fabric’s marketing appeal and functionality of the garments that will be made from the fabric. In light of the above, we find that it is the outer layer of the fabric that gives its essential character to it. Accordingly, the fabric is classified as if it consisted solely of the material in the outer layer, the knitted polyester, in heading 6006, HTSUSA.
Having concluded that the fabric falls within the scope of a heading in Section XI, we must examine whether the fabric is excluded from classification in that Section by any relative section or chapter notes. Note 1(q) to Section XI excludes, among other things, “carbon fibers or articles of carbon fibers of heading 6815.” While one layer of the fabric does contain carbon, it contains activated carbon particles, not fibers. In light of the above, we find that Note 1(q) to Section XI does not exclude the fabric from classification in Section XI, HTSUSA.
HOLDING:
NY F83890 is hereby revoked.
The ScentBlocker® fabric is classified under 6006.34.0040, HTSUSA, which provides for: “Other knitted or crocheted fabrics: Of synthetic fibers: Printed: Of double knit or interlock construction: Of polyester.” The 2005 column 1, “General” duty rate for this merchandise is 10 percent ad valorem.
The ScentBlocker® fabric falls within textile category 222. Quota/visa requirements are no longer applicable for merchandise which is the product of World Trade Organization (WTO) member countries. The textile category number above applies to merchandise produced in non-WTO member countries. Quota and visa requirements are the result of international agreements that are subject to frequent renegotiations and changes. To obtain the most current information on quota and visa requirements applicable to this merchandise, we suggest you check, close to the time of shipment, the “Textile Status Report for Absolute Quotas” which is available on our web site at www.cbp.gov. For current information regarding possible textile safeguard actions on goods from China and related issues, we refer you to the web site of the Office of Textiles and Apparel of the Department of Commerce at otexa.ita.doc.gov. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division