OT:RR:CTF:FTM H302469 TJS
Ms. Maria E. Celis
Neville Peterson LLP
One Exchange Plaza
55 Broadway, Suite 2602
New York, NY 10006
RE: Affirmation of HQ H298315; Classification of rags made of polyester/nylon knit looped pile fabric.
Dear Ms. Celis:
This is in response to your December 12, 2018 letter, on behalf of Roemar, Inc., requesting reconsideration of Headquarters Ruling Letter (“HQ”) H298315, dated November 13, 2018, and New York Ruling Letter (“NY”) N295082, dated April 11, 2018. In HQ H298315, this office affirmed NY N295082, which classified certain soft knit polyester/nylon looped pile fabric under subheading 6001.22.00, Harmonized Tariff Schedule of the United States (“HTSUS”). We affirm HQ H298315 because the goods at issue are not “made up” within the meaning of Note 7 to Section XI, HTSUS.
NY N295082 described the items at issue as follows:
The “Grab-A Rag” samples submitted, R-004004 (blue) and R-004011(red), are soft knit polyester rags with unfinished edges that are cut into squares. According to the information provided, the knit fabric is of looped pile construction, weighs 185 g/m2 and is composed of 87 percent polyester and 13 polyamide (nylon). You state that the product is made from new or waste fabric that is dyed and the colors will vary due to the fact that waste fabric causes inconsistent dying, which can result in shade variances. You indicate that this fabric will be imported in a square or rectangular shape, approximately 30.5 centimeters by 30.5 centimeters and will be used as an industrial wiper or more commonly known as a “cleaning rag”; and they will be packaged in boxes of fifty.
In your submission, dated December 12, 2018, you distinguish finished cloths or towels from rags as follows:
Further, the industry differentiates finished cloths or towels from rags, mainly due to the quality, durability function (repetitive use) and the consumers’ perception of the finished product. A finished cloth or towel is a made-up article requiring several more processes. They are finished by a hem or an overlock stitch. It can be used for similar purposes as rags, but rags are never perceived as equal in quality, durability or function to cloths or towels.
The industry views the goods in issue as a rag/ industrial wiper manufactured from scrap (new end of roll fabric) for industrial use to clean or polish and then [sic] thrown away.
In your request for reconsideration, you make several arguments for classification under Chapter 63, HTSUS, some of which were previously addressed in HQ H298315. We only address your new arguments in this decision. As such, you claim in pertinent part as follows:
The subject goods are ultrasonically sealed, and that ultrasonic sealing is NOT hot cutting, which deals with heated cutting knives.
U.S. Custom and Border Protection’s (“CBP”) interpretation of Section XI, Note 7 is incorrect because the enumerated items form a disjunctive list and the fact that a good is the shape of a rectangle or square, contrary to Note 7(a), does not preclude it from being “made up” under Chapter 63, HTSUS. Pursuant to Note 7(b) and (c), the subject goods are “made up” because they are produced in the finished state, ready for use, and cut to size with at least one heat-sealed edge through ultrasonic sealing. Therefore, the goods are properly classified under Chapter 63, and are precluded from classification under Chapter 60 as fabrics.
Whether the goods are classified under Chapter 60 or Chapter 63, HTSUS, depends on whether the goods are “made up” within the meaning of Note 7 to Section XI, HTSUS. Upon review, we find that the soft knit polyester/nylon rags at issue are not made up articles. Because the rags are cut into squares or rectangles, they are excluded from being considered “made up” as defined by Note 7(a). However, you argue that Note 7 should be read as a disjunctive list of requirements such that the failure to satisfy one of the requirements will not preclude the others from applying. You argue, therefore, that the rags being cut into squares, contrary to Note 7(a), will not preclude Note 7(b) or (c) from applying. You argue that the subject goods are “made up” within the scope of Note 7(b) and (c) because they are produced in a finished state, ready for use, being cut to size and having their edges ultrasonically finished. We find that the rags at issue do not fall under paragraphs (b) or (c) of Note 7.
We find that the subject rags are not “made up” under Note 7(b) to Section XI, HTSUS. 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 rags at issue are 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 HQ H192949 (Dec. 21, 2012); HQ 089592 (Sept. 20, 1991); and, HQ 083171 (Dec. 15, 1989). Here, the articles are not finished when the soft knit polyester/nylon material is removed from the loom. Rather, the rags are produced from scrap (end of roll) material, which is subsequently dyed and cut up into 30.5 x 30.5 centimeter square pieces or rectangles. Because the polyester/nylon textile requires subsequent manipulation after removal from the loom (i.e. dying and cutting) before becoming the finished product, the subject rags are not “produced in the finished state.”
Furthermore, the rags at issue are not “produced in the finished state” based on the Explanatory Notes to Section XI, HTSUS, which state in pertinent part:
However, rectangular (including square) articles simply cut out from larger pieces without other working ... are not regarded as “produced in the finished state” within the meaning of this Note. The fact that these articles may be presented folded or put up in packings (e.g., for retail sale) does not affect their classification.
CBP has consistently held that cloth wipes, which are simply cut in a square or rectangular shape from a larger piece, without other working, are not made up articles. See, e.g., NY B88423 (Aug. 19, 1997); HQ 950786 (Jan. 28, 1992); HQ 089058 (July 25, 1991); and, HQ 086614 (Mar. 30, 1990). Because the subject rags are simply cut into squares or rectangles from the larger piece of polyester/nylon textile, they are not regarded as “produced in the finished state.” Accordingly, the subject goods are not “made up” pursuant to Note 7(b).
We also find that the subject rags are not “made up” under Note 7(c) to Section XI, HTSUS. To be “made up” under Note 7(c), the goods must be “cut to size and with at least one heat-sealed edge with a visibly tapered or compressed border but excluding fabrics the cut edges of which have been prevented from unraveling by hot cutting or by other simple means.” Upon reviewing your submitted images and video, and based on prior examination of submitted samples, we find that the rags show no evidence of having a visibly tapered or compressed border.
You argue that the rags are ultrasonically sealed, and that ultrasonic sealing is not hot cutting. To support your argument, you point to Sassy, Inc. v. United States, in which the Court of International Trade held that a substantial transformation occurred when four component parts were ultrasonically welded together into a pacifier. Sassy, Inc. v. United States, 24 C.I.T. 700, 701 (2000) (“[u]ltrasonic welding is the assembly of two component parts by a transformation of electrical energy into mechanical energy.”). We note that the merchandise in Sassy is substantially different than the rags at issue here. The present case does not involve the ultrasonic welding of component parts, but rather concerns whether the ultrasonic sealing of fabric edges is considered “hot cutting or by other simple means” under Note 7(c) to Section XI, HTSUS.
You describe the ultrasonic sealing process as follows:
Through a transistor component, ultrasonic machines change 50-60Hz power frequency to 40-60kHz high energy electricity to power and supply the transverter. The transverter converts the electricity into ultrasonic vibrations, then through a head, or plate transforms mechanical vibrations, to the cutting knives. This mechanical vibration power tooling will generate 110 ? high temperature under 4KG of pressure. The knives vibrate at about 20,000 beats per second. This vibration molecularly fuses the fibers of the ragged edges together to prevent the ends from unraveling.
You also explain that the material for the rags is first cut into squares or rectangles, and then subsequently passed through an ultrasonic sealer. However, your submitted video demonstrates that the cutting and sealing of the material occurs in a simultaneous process. Based on your description, the cutting knives prevent the edges from unravelling by vibrating quickly enough to generate heat. We consider this heat-setting process to be “hot cutting or by other simple means” to prevent unravelling as referred to in Note 7(c). Consistent with the above, we find that the subject rags, being ultrasonically cut without visibly tapered or compressed borders, are not “made up” under Note 7(c). Therefore, the subject rags, not being “made up” articles, are not classified under Chapter 63, HTSUS.
CBP has previously held that a cloth ultrasonically cut was not “made up” within the meaning of Note 7 to Section XI. In HQ H010120, dated August 3, 2007, CBP held that clean room wipes, which were ultrasonically cut from larger pieces of fabric into 22.9 square centimeters, and not hemmed or otherwise processed, were merely cut from larger pieces of fabric and therefore did not qualify as an article which is “made up” under Note 7.
In accordance with the foregoing, we affirm HQ H298315, dated November 13, 2018, which correctly classified the soft knit polyester rags styles R-004004 (blue) and R-004011(red) under subheading 6001.22.00, HTSUS, as “Pile fabrics, including “long pile” fabrics and terry fabrics, knitted or crocheted: Looped pile fabrics: Of man-made fibers.”
Myles B. Harmon, Director
Commercial and Trade Facilitation Division