CLA-2 OT:RR:CTF:TCM H017689 JER
Port Director
U.S. Customs and Border Protection
101 E. Main Street
Norfolk, VA 23510
RE: Request for Internal Advice 07/030; Fiberglass Veils Used in the Manufacture of Acoustical Ceiling Tiles
Dear Port Director:
This is in response to your request for internal advice initiated by Sandler, Travis & Rosenberg, P.A., on behalf of Owens Corning, dated June 25, 2007. The request pertains to the classification of certain fiberglass veils under the Harmonized Tariff Schedule of the United States (HTSUS) and was made in accordance with U.S. Customs and Border Protection (CBP) Regulations Part 177 (19 C.F.R. 177). Specifically, 19 C.F.R. §177.11 allows requests for "advice or guidance as to the interpretation or proper application of the Customs and related laws with respect to a specific Customs transaction . . . from the Headquarters Office at any time, whether the transaction is prospective, current, or completed." 19 C.F.R. §177.11(a). Our ruling on this matter is set forth below.
FACTS:
The subject merchandise, fiberglass veil, manufactured by Owens Corning is described by the importer as consisting of glass fibers with a nominal measurement of 6 mm in length and a diameter of 10-11 µm. It is manufactured on a veil line machine using a wet laid process. It is described as being a nonwoven fiberglass veil bound by polyvinyl alcohol. The fiberglass veils are said to be used in the manufacture of acoustical ceiling tiles and include additives which provide additional strength, water-repellency and flame retardancy. The thickness of the fiberglass veils, also referred to as “scrim” or “ceiling veil,” measures between 0.035 mm and 0.90 mm (0.013 inches to 0.036 inches) depending on the veil type. The importer asserts that although the merchandise is classifiable in subheading 7019.32.00, HTSUS, it is covered by the temporary provision in subheading 9902.70.19, HTSUS
ISSUE:
Whether the subject fiberglass veils are classifiable under temporary subheading 9902.70.19, Harmonized Tariff Schedule of the United States (HTSUS).
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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.
The HTSUS provisions under consideration are as follows:
7019 Glass fibers (including glass wool) and articles thereof
(for example, yarn, woven fabrics):
Thin sheets (voiles), webs, mats, mattresses, boards and similar nonwoven products:
7019.32.00 Thin sheets (voiles)
9902.70.19 Thin smooth nonwoven fiberglass sheets, approximately .0125 inches thick, comprised principally of glass fibers bound together in a polyvinyl alcohol matrix, of a type primarily used as acoustical facing for ceiling panels (provided for in subheading 7019.32.00)
The instant merchandise was the subject of Senate Bill S.3498, wherein the temporary suspension of duty on certain thin fiberglass sheets was contemplated. On January 11, 2007, the U.S. International Trade Commission (ITC) issued a Memorandum On Proposed Tariff Legislation of Senate Bill S. 3498 (“ITC Memorandum”), which included the proposed tariff legislation along with a description of the article, its uses and the source of importation. According to Owens Corning and the ITC Memorandum, the bill was submitted by Armstrong World Industries. According to the submission provided by counsel for the importer, the intent of the bill was to cover the Owens Corning fiberglass veils and to distinguish the subject fiberglass veils from other fiberglass i.e. “thin sheets” of subheading 7019.32.00, HTSUS. The proposed and ultimately enacted description resulting from the legislative process is as follows:
Thin smooth nonwoven fiberglass sheets, approximately 0.0125 inches thick, comprised principally of glass fibers bound together in a polyvinyl alcohol matrix, of a type primarily used as acoustical facing for ceiling panels provided for in subheading 7019.32.00.
It is clear that absent the temporary provision in Chapter 99, the fiberglass veils at issue are classifiable in heading 7019, HTSUS, specifically 7019.32.00, HTSUS, which provides in pertinent part for “Glass fibers … and articles thereof: Thin sheets ...” Subheading 9902.70.19, HTSUS, a temporary provision, contains a specific description of a particular product classifiable in subheading 7019.32.00, and distinguished from other thin fiberglass sheets of subheading 7019.32.00, HTSUS. At issue is whether the instant fiberglass veils fall within the specific description set forth in the temporary trade provision of Chapter 99. The facts presented indicate that the fiberglass veils meet all but one of the requirements set forth in the description for subheading 9902.70.19, HTSUS. That deviation is the “thickness” of the fiberglass veils.
Counsel for the importer contends that in the subject provision the language “approximately 0.0125 inches thick” is, “a simple approximation of all potential thicknesses” for which these fiberglass ceiling veils could be manufactured. We disagree. We must examine the merchandise according to the terms of the HTSUS provision at issue. Any item seeking coverage under this subheading must fall within the terms of the provision.
In determining whether these fiberglass veils meet the criteria for being “approximately” 0.0125 inches thick it becomes necessary to determine the meaning of the word “approximately.” In cases where a term is defined by statute, the court need not undertake a common-meaning inquiry, for the statutory definition is controlling. Overton & Co. v. United States, 85 Cust. Ct. 76, 80-81 (1980). Absent an express definition, however, dictionaries, lexicons, scientific authorities, and other such reliable sources may be consulted to determine common meaning. C.J. Tower & Sons of Buffalo, Inc. v. United States, 673 F.2d 1268, 1271 (Fed. Cir. 1982).
The word approximate means: “to come near to or close to in position; the quality or state of being close or near; nearly correct or exact.” Merriam-Webster’s Collegiate Dictionary, 10th ed., (2001); see also, American Law Reports, 173 A.L.R. 1247, (which defined approximately as meaning “nearly,” “about” or “close to”). Unless a contrary legislative intent is shown, tariff terms are construed in accordance with their common and commercial meanings, which are presumed to be the same. See, e.g., Nippon Kogaku (USA), Inc. v. United States, 673 F.2d 380, 382 (Fed. Cir. 1982); Schott Optical Glass, Inc. v. United States, 612 F.2d 1283, 1285 (Fed. Cir. 1979). It follows that, in order to meet the measurement requirements of subheading 9902.70.19, HTSUS, the product must be nearly, about or close to 0.0125 inches in thickness.
In HQ W968400, dated August 6, 2007, we noted that an article may exceed the dimensional description set forth in the U.S. Additional Note, so long as the dimensional variations are reasonable and provided other classification criteria are met. In that decision, the term “of the size nearest to” meant either more or less than the dimension specified. HQ W968400 reasoned that the dimensional variations were not unreasonable in light of other factors determinative of classification.
In the case at issue the relevant descriptive factors are: (1) Thin smooth nonwoven fiberglass sheets which are (2) approximately .0125 inches thick, (3) comprised principally of glass fibers bound together in a polyvinyl alcohol matrix, and (4) of a type primarily used as acoustical facing for ceiling panels. We find that the subject fiberglass veils are not approximately .0125 inches thick. However, the subject merchandise does satisfy each of the remaining requirements of the provision. For instance, the Owens’ scrim is made up of thin nonwoven fiberglass sheets as required by the provision. Second, the subject scrims are bound by polyvinyl alcohol. Third, these items are primarily used in the manufacture of acoustical ceiling tiles.
The Court has addressed merchandise classifiable in Chapter 99 which did not comply with each requirement set forth in a temporary provision. In Filmtec Corporation. v. United States, 27 C.I.T. 1730, 1741, 1742; 293 F. Supp.2d 1364, 1373, 1374 (2003), the Court held that an article was classifiable under a Chapter 99 provision by application of the rule of de minimis where 1) the description of the article only deviated slightly from the requirements set forth in the provision and 2) the non-existence of any other good conforming to the provision was demonstrated. The Court explained that the application of the rule of de minimis was more acceptable than strict adherence to specific requirements for a Chapter 99 provision which both Congress and the President placed into law. Id at 1372-73. The Court further noted that “the rule [of de minimis] is applied only where it will promote ‘the statutory purpose’ … the intent of the framers of the law.” Id at 1371. In Filmtec, the Court addressing the application of a temporary suspension of duty provision to non-woven fiber sheets noted that deviations from specifications which were 3.7 mils to 4 mils were de minimis and did not preclude classification of Plaintiff’s products which were 3.6 mils to 4.2 mils.
In the instant case, classification of the subject merchandise satisfies the two-part test set forth in Filmtec. First, by applying the rule of de minims, the deviations from the required thickness set forth in subheading 9902.70.19, HTSUS are insufficient to preclude classification from a temporary Chapter 99 provision. Secondly, CBP is unable to identify any other article which is classifiable under 9902.70.19, HTSUS. As a result, there is apparently no other good which conforms to the terms of the provision. While measurements between 0.013 to 0.036 inches exceed fiberglass sheets which are approximately 0.0125 inches thick, this single deviation need not render superfluous a classification provision promulgated at the direction of Congress. As Filmtec explains, to preclude classification of an article for which a Chapter 99 provision was specifically written “would force us to hold that there is, apparently, no product which is described by the provision.” Id at 1374. Furthermore, it would be “illogical to suggest that both Congress and the President placed this provision into law knowing that it described no actual good.” Id at 1373.
Accordingly, we find that the deviation in the thickness of the fiberglass veils is not sufficient to preclude classification from subheading 9902.70.19, HTSUS. In light of the overall compliance with the statutory terms of the instant Chapter 99 provision, we find that the subject fiberglass veils are properly classified in subheading 9902.70.19, HTSUS.
HOLDING:
By application of GRI 1, the fiberglass veils (a.k.a scrim) are classified under the temporary provision provided for in subheading 9902.70.19, HTSUS, which provides for: “Thin smooth nonwoven fiberglass sheets, approximately 0.0125 inches thick, comprised principally of glass fibers bound together in a polyvinyl alcohol matrix, of a type primarily used as acoustical facing for ceiling panels (provided for in subheading 7019.32.00).” The 2008, column one, general rate of duty is free.
You should advise the Internal Advice Inquirer of this decision. This decision should be mailed by your office to the internal advice inquirer no later than 60 days from the date of this letter. On that date, Regulations and Rulings of the Office of International Trade, will take steps to make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division