CLA-2 OT:RR:CTF:TCM H037552 TNA
Port Director, Service Port
1515 Poydras Street, Suite 1700 New Orleans, LA 70112
Attn: Protest Office
Re: Application for Further Review of Protest No: 2002-08-100104; Polyester Ropes
Dear Port Director:
The following is our decision regarding Protest No. 2002-08-100104, timely filed on April 1, 2008, on behalf of Chevron, Inc., regarding classification of polyester ropes under the Harmonized Tariff Schedule of the United States (HTSUS). The protest describes one entry on April 10, 2007, under subheading 5607.21.00, HTSUS, which provides for: braided rope: of certain natural textile fibers.
CBP liquidated the entry on October 5, 2007, in subheading 5609.00.30, HTSUS, the provision for articles of rope of manmade fibers. Admitting that the rope is made of synthetic (instead of natural) fibers, Protestant claims classification in subheading 5607.50.40, as cordage, ropes and cables, whether or not braided and whether or not coated or covered with rubber or plastics: of other synthetic fibers: other. The classification under which the merchandise was entered, subheading 5607.21.00, HTSUS, is no longer at issue as Protestant does not claim that the merchandise is made of vegetable fibers.
FACTS:
The merchandise consists of rope that is made of polyester yarn with a marine finish. It is made of torque balanced stranded polyester rope and contains a braided outer jacket. The diameter of the polyester rope is 10.6 inches, and the rope has a minimum wet breaking strength of 4200 kips (1905 motons). A mud filter is embedded between the inner polyester strands and the outer braided jacket. On each end, every rope has a splice eye, which is a fixed loop. The splice eyes are coated with a polyurethane jacket to protect against abrasions. Thimble spools, which are metal inserts for the splice, are cast of forged steel and have lifting lugs or holes for lifting shackles. The thimbles are imported with the ropes but are not attached until after importation. The rope is made for use on offshore oil and gas platforms as part of the connection system that affixes the platform to the ocean floor. The ropes are cut to size before they are imported.
In coming to this decision, we have considered counsel’s oral argument in a teleconference held on December 17, 2009, as well as supplemental information submitted on January 11 and 12, 2010.
ISSUE:
Whether polyester ropes cut to length on a spool and including a braided splice eye imported with metal thimble inserts are classified as braided coated ropes of heading 5607, HTSUS, or as articles of ropes in heading 5609, HTSUS?
LAW AND ANALYSIS:
The protest is properly filed under 19 U.S.C. §1514(a) (2) as a decision on classification. The protest was timely filed, within 180 days of liquidation of the first entry for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2) (B) (ii), (iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006)).
Further Review of Protest No. 2002-08-100104 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(b) because Protestant alleges that this protest involves questions of law and/or fact that have not been ruled upon by the Commissioner of CBP or his designee of by any court. Protestant also alleges, under 19 C.F.R. §174.24(a), that previous CBP rulings have classified similar products differently in HQ 951840, dated February 9, 1993, HQ 959848, dated November 5, 1997, NY G85071, dated December 28, 2000, NY D85951, dated January 8, 1999, and NY B80261, dated December 19, 1997.
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to the GRIs.
The HTSUS headings under consideration are the following:
5607: Twine, cordage, ropes and cables, whether or not plaited or braided and whether or not impregnated, coated, covered or sheathed with rubber or plastics:
5607.50: Of other synthetic fibers:
5607.50.40: Other
* * * * * * * * * * * * *
5609.00: Articles of yarn, strip or the like of heading 5404 or 5405, twine, cordage, rope or cables, not elsewhere specified or included:
5609.00.30: Of man-made fibers
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The EN to heading 5607, HTSUS, reads, in pertinent part:
This heading covers twine, cordage, ropes and cables, produced by twisting or by plaiting or braiding…
These products are classified here whether or not cut to length.
The heading excludes: …
(c) Articles of heading 56.09.
The EN to heading 5609, HTSUS, reads, in pertinent part:
[The heading] includes yarns, cordage, rope, etc., cut to length and looped at one or both ends, or fitted with tags, rings, hooks, etc….
Protestant argues that heading 5607, HTSUS, describes the polyester ropes at issue here. In support of its argument, the company cites a number of cases that classify ropes made of polyester under this subheading. See, e.g., HQ 951840, dated February 9, 1993 (two different types of clean rope, one with an eye approximately 1 foot in diameter at one end formed by splicing one end of the rope back on itself, with the splicing done by hand after the rope was made, the second with eye has been cut open; the exposed fibers at the cut portions of the eye have been beaded and blackened, as if a flame was held to them after cutting); HQ 959848, dated November 5, 1997 (100 foot lengths of rope whose core consisted of a nonwoven polypropylene 5 cm wide strip which is wrapped around polypropylene multifilaments and an outer shell of cotton and polyester); NY G85071, dated December 28, 2000 (PTA, a derivative of terephthalic acid, and ethylene glycol were used to produce polyester yarn, which was braided into cord on a braiding machine); NY D85951, dated January 8, 1999 (braided rope made of polyester filaments of either 1,000 or 1,300 denier, and weighs approximately 28 grams per yard); and NY B80261, dated December 19, 1997 (three-ply twisted polyester rope which is made of multifilament yarns well over 10,000 decitex). Thus, Protestant argues that heading 5609, HTSUS, a basket provision for “rope that is not elsewhere specified,” cannot be used for the instant merchandise.
While CBP agrees that these cases classify ropes made of polyester in heading 5607, HTSUS, the merchandise in those cases did not contain other metal components, did not have eyes at both ends, or still required being cut to length to use. Heading 5607, HTSUS, covers “twine, cordage, ropes and cables,” and heading 5609, HTSUS, covers “articles” made out of these items. As for the term “not elsewhere specified or included” in heading 5609, HTSUS, it applies to the whole heading, including “articles of yarn, strip, twine, cordage, rope or cables.” Therefore, an article of rope, such as that at issue here, is classified in heading 5609, HTSUS, when it is not specified elsewhere in the tariff schedule.
The court considered the general problem of when a “material” becomes an “article” and cited the requirement that “the character or identity of the individual articles is fixed with certainty and … is not commercially capable of any other use.” Furthermore, the court stated that “if the material has been so far processed from the ‘material’ stage to a partly-completed article, then it loses its character as material and takes on the characteristics of the article for which the material was intended.” Benteler Indus. v. United States, 17 C.I.T. 1349; 840 F. Supp. 912; 15 Int'l Trade Rep. (BNA) 2542; 1993 Ct. Intl. Trade LEXIS 240; SLIP OP. 93-237 (1993); American Import Co. v. United States, 26 C.C.P.A. 72; 1938 CCPA LEXIS 201; T.D. 49612 (1938). See also Bendix Mouldings, Inc. v. United States, 73 Cust. Ct. 204; 388 F. Supp. 1193; 1974 Cust. Ct. LEXIS 2987; Cust. Dec. 4576 (1974). Chevron’s ropes are imported cut to size on a spool with a splice eye and with a thimble to be inserted at the ends of the rope once it is imported. This constitutes a sufficient level of processing that the rope at issue loses its character as material and takes on the character of an article.
Also, EN 56.09 states that this heading includes rope that is cut to length and looped at one or both ends, or fitted with metal pieces such as rings and hooks. See EN 56.09. The instant merchandise is cut to length, looped and includes metal thimbles for insertion before use. Although heading 5607, HTSUS, describes rope that is cut to length, nothing in the terms of the heading or EN 56.07 allows for the addition of a spool, splice eye or thimble. In fact, CBP has consistently held that ropes that have been spliced at one end and cut to length are classified in heading 5609, HTSUS, as articles of rope. See, e.g., NY 805098, dated March 14, 1995; NY H05098, dated December 19, 1995; and HQ 957661, dated June 7, 1995. Because we find that the instant merchandise is described by the terms of heading 5609, HTSUS, as an article, it is excluded from classification in heading 5607, HTSUS. See EN 56.07.
HOLDING:
By application of GRI 1, the instant spooled and spliced ropes, made of a polyester yarn with a marine finish and having a diameter of 10.6 inches, are classified under subheading 5609.00.30 HTSUS, which provides for: “Articles of yarn, strip or the like of heading 5404 or 5405, twine, cordage, rope or cables, not elsewhere specified or included: Of man-made fibers.” As such, the general column one duty rate is 4.5%.
You are instructed to DENY the protest.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP 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 International Trade, Regulations and Rulings, will 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