CLA 2 RR:CR:GC 962337 AML
Port Director of Customs
JFK International Airport
Building 77
Jamaica, NY 11430
RE: Protest 1001-98-100550; stainless steel susmic aramid Kevlar fiber woven fabric
Dear Port Director:
The following is our decision regarding protest 1001-98-100550, concerning your classification of stainless steel susmic aramid Kevlar fiber, pursuant to the Harmonized Tariff Schedule of the United States (HTSUS). Literature and a sample were provided for our examination.
FACTS:
The sample stainless steel susmic aramid Kevlar fiber woven fabric, type FN-60C, consists of a yellow and silver swatch of fabric. The swatch of fabric is approximately 2" (4.5 cm) in width, 7" (13 cm) in length, and 1/16 of an inch in thickness. The importer states that the article is composed, by weight, of 55% stainless steel (“susmic”) fibers (silver) and 45% aramid (“Kevlar”) nylon man made fibers (yellow), and that there are 3 “wires” to the centimeter. An analysis performed at the Customs Laboratory, report # 2-1999-10882, dated May 28, 1999, revealed that the fabric has the following composition by weight: 73.9% stainless steel fibers and 26.1% Kevlar fibers. The yarns of this fabric each consist of a multi filament, three ply yarn. The importer submits in its protest memorandum that the product is imported in continuous rolls, 60 meters in length, not cut to a specific size for a particular use. The product is used as an insulating material for molds in an automobile glass manufacturing line.
The articles were entered on May 21, 1997, and the entry was liquidated on April 3, 1998, with classification in subheading 7326.90.85, HTSUS, as other articles of iron and steel. The protest was filed on April 7, 1998.
ISSUE:
Whether the merchandise at issue is classifiable under subheading 7314.14.10, HTSUS, as cloth, grill, netting and fencing of iron or steel wire; or subheading 7326.90.85, HTSUS, as an other article of iron or steel?
LAW AND ANALYSIS:
Initially we note that the protest was timely filed (i.e., within 90 days after but not before the notice of liquidation; see 19 U.S.C. 1514 (c)(3)(A)) and the matter is protestable (see 19 U.S.C. 1514 (a)(2) and (5)).
Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and, provided the headings or notes do not require otherwise, according to GRIs 2 through 6.
The HTSUS subheadings under consideration are as follows:
7314 Cloth (including endless bands), grill, netting
and fencing, of iron or steel wire; expanded
metal of iron or steel:
Woven cloth:
7314.14 Other woven cloth, of stainless steel:
7314.14.10 With meshes not finer than 12 wires
to the lineal centimeter in warp or
filling.
* * * * * * * * * * * * *
7326 Other articles of iron or steel:
Other:
7326.90 Other:
Other:
7326.90.90 Other.
To be classified in heading 7314, HTSUS, the fabric must be of “iron or steel wire.” The protestant explains the process through which the “susmic” (which is the industry name for stainless steel fibers) fibers are manufactured as follows:
1. Stainless steel wire is extended via the application of heat and tension to a thickness of only 20 microns, a “superfine” wire.
2. A bundle of such superfine wires is gathered together, and then further extended, to the threshold of their breaking point. This product is referred to as stainless steel tow.
3. The tow is then chopped by means of mechanical rollers, resulting in short-cut stainless steel fiber.
4. The resultant fiber is then spun in the conventional manner, and mechanical twist is added. The finished product of these operations is stainless steel yarn, which can be woven or knit to make cloth, or combined with other yarns (e.g., the Kevlar yarns in the instant merchandise) to make such cloth.
When interpreting and implementing the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, while neither legally binding nor dispositive, provide a guiding commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. Customs believes the ENs should always be consulted. See, T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 7314, pages 1112-1113, provides in pertinent part that “[t]he products in this group are, in the main, produced by interlacing, interweaving, netting, etc., iron or steel wire by hand or machine [emphasis added].” As stated above, the susmic fiber, although derived initially from stainless steel wire, is, through the several stages of manufacture, transformed into stainless steel fiber, an article separate and distinct form, and no longer classifiable as, stainless steel wire. See also, Note 2, Chapter 73, HTSUS, which defines “wire” for purposes of Chapter 73 as
“ . . . hot- or cold-formed products of any cross-sectional shape, of which no cross-sectional dimension exceeds 16 mm;” see also EN 73.14; Webster’s New World Dictionary, 3rd Coll. Ed. (1988), (“wire . . . 1 metal that has been drawn into a very long, thin thread or rod, usually circular in cross section”). Because the susmic fibers in the fabric are not “iron or steel wire,” the fabric is not “[c]loth . . . of iron or steel wire” and classification in heading 7314, HTSUS, is precluded. (We note that classification of the fabric as a textile product and article for technical uses, in heading 5911, HTSUS, is also precluded (see Headquarters Ruling Letter (HQ) 952934, dated July 19, 1993)).
The article in question is a fabric of steel and Kevlar which cannot be classified under GRI 1. It is, prima facie, classifiable in at least two headings (i.e., the steel component is classifiable in a heading of Chapter 73, HTSUS (New York Ruling Letter (NY) C80139, dated October 2, 1997) and the Kevlar component in Chapter 55 or 59, HTSUS (HQ 083739, dated January 30, 1990)). Goods which cannot be classified in accordance with GRI 1 are to be classified in accordance with subsequent GRIs, taken in order. GRI 3 states, in pertinent part:
When by application of Rule 2(b) [goods of more than one material or substance] or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
* * *
(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 [GRI] 3(a) [which requires that goods be classified, if possible, under the more specific of the competing provisions], shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
Explanatory Note (IX) to GRI 3 provides:
For the purposes of [GRI 3(b)], 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 to one another and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts. [C]lassification [of composite goods] is made according to the component, or components taken together, which can be regarded as conferring on the set as a whole its essential character.
The factors which determine essential character of an article will vary from case to case. It may be the nature of the materials or the components, its bulk, quantity, weight, value, or the role a material plays in relation to the use of the goods. In general, essential character has been construed to mean the attribute which strongly marks or serves to distinguish what an article is; that which is indispensable to the structure or condition of an article. The protestant states, in reliance upon a previous submission concerning a similar product, that the:
[s]usmic fiber is used as a substitute for fiber glass, the product used heretofore for such applications. It has been found that its durability is superior to fiber glass because of its greater heat resistance. Kevlar also possesses durability against heat, and also adds tensile strength to the product. The resultant commodity is considerably more durable under the intense heat conditions which exist in the glass forming industry.
The Customs Office of Laboratories and Scientific Services (see above) has determined that the steel affords the article its durability and toughness. This, in addition to the fact that the steel comprises an overwhelming portion of the article’s weight and value, causes us to conclude that the stainless steel fibers impart to the article its essential character. Therefore, the article is considered an article of steel.
This determination is consistent with previous treatment of similar articles by Customs. In NY C80139 (referred to above), Customs held a inner glove of Kevlar (49%) and steel (51%) to be classifiable in subheading 7326.90.85, HTSUS, as other articles of iron or steel, and, if the inner glove was imported together with an outer glove of nitrile (55%) and cotton (45%), the classification remained the same.
HOLDING:
The stainless steel susmic aramid fiber Kevlar woven fabric, type FN-60C, is classifiable under subheading 7326.90.85, HTSUS, as other articles of iron or steel, other, other, other, other.
The protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs 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 Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director,
Commercial Rulings Division