CLA-2 OT:RR:CTF:TCM H265023 GA
Port Director
Los Angeles/Long Beach Seaport
U.S. Customs and Border Protection
301 E. Ocean Blvd
Long Beach, CA 90802
Attn: Import Specialist Sara Fielding
RE: Application for Further Review of Protest No. 2704-14-101326; Classification of cellular window blind material
Dear Port Director:
This is in reference to the Application for Further Review (“AFR”) of Protest No. 2704-14-101326, timely filed on September 4, 2014, on behalf of HT Window Fashions. The AFR concerns the classification of woven and nonwoven pleated and glued cellular window blind material under the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
The merchandise is described as pleated cellular shade bodies made up of multiple separate pieces of fabric of 3” W by 144” L which are folded, both edges to the middle, then glued along each middle to another identical folded unit successively until the desired length is achieved. The merchandise is assembled from 3” strips of either the woven or nonwoven fabric. The strips are pleated and glued or otherwise bonded to one another to form a series of cells.
The subject merchandise was entered under subheading 5603.12.0010, HTSUSA, which provides for “Nonwovens, whether or not impregnated, coated, covered or laminated: Of man-made filaments: Weighing more than 25 g/m2 but not more than 70g/m2: Other” and subheading 5515.21.0090, HTSUSA, which provides for “Other woven fabrics of synthetic staple fibers: Of acrylic or modacrylic staple fibers: Mixed mainly or solely with man-made filaments: Other.” The merchandise was entered between June 2, 2013 and May 22, 2014 and liquidated under the subheading 6303.92.20, HTSUS, which provides for “Curtains (including drapes) and interior blinds; curtain or bed valances: Other: Of synthetic fibers: Other: Other: Windows shades and window blinds” between July 11, 2014 and July 18, 2014. Protestant filed its protest on September 4, 2014, claiming that the correct classification for the merchandise are under subheadings 5603.12.0010, HTSUSA and 5512.21.0090, HTSUSA.
ISSUE:
Whether the cellular window blind material is a fabric or an article.
LAW AND ANALYSIS:
Initially, we note that the matter protested is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation 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. 2704-14-101326 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(b) and (c) because the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts.
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 (AUSRI). 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 GRIs 1 through 5.
The 2014 HTSUS provisions under consideration are the following:
5515 Other woven fabrics of synthetic staple fibers
* * * * * *
5603 Nonwovens, whether or not impregnated, coated, covered or laminated
* * * * * *
6303 Curtains (including drapes) and interior blinds; curtain or bed valances
* * * * * *
6307 Other made up articles, including dress patterns
* * * * * *
Legal Note 7(f) to Section XI, HTSUS, provides that:
Assembled by sewing, gumming or otherwise (other than piece goods consisting of two or more lengths of identical material joined end to end and piece goods composed of two or more textiles assembled in layers, whether or not padded)
* * * * * * *
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding or dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The ENs for Chapter 55 state that the General Explanatory Notes to Section XI (which include Note 7 cited above) should be taken into account in reading the ENs to the Chapter.
The EN 56.03 states, in relevant part, as follows:
Except where they are covered more specifically by other headings in the Nomenclature, the heading covers nonwovens in the piece, cut to length or simply cut to rectangular (including square) shape from larger pieces without other working, whether or not presented folded or put up in packings (e.g., for retail sale). These include : facing webs (overlay) for incorporation in laminated plastics; top sheets for the manufacture of disposable baby napkins (diapers) or sanitary towels; fabrics for the manufacture of protective clothing or garment linings; sheets for filtering liquids or air, for use as stuffing materials, for sound insulation, for filtration or separation in road building or other civil engineering works; substrates for manufacturing bituminous roofing fabrics; primary or secondary backing for tufted carpets, etc.; handkerchiefs, bed linen, table linen, etc.
* * * *
The issue presented is whether the cellular window material imported in the piece should be regarded as a material or an article or classification purposes. General Rule of Interpretation (GRI) 2(a) states in part that:
Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article.
Thus, if the cellular window blind material has the “essential character” of an article which is a component for blinds or shades, it may be classified as a part.
In making this "essential character" determination, we are mindful of judicial authority pertaining to the distinction between materials and articles. In United States v. Buss & Co.’ 5 Ct. Cust. Appls. 110, 113 (1914), the Court stated that:
The rule expressed by the decisions just cited recognizes the fact that most small articles are not produced as individual or separate products of the loom, but for economy of manufacture are first woven "in the piece." The rule of decision is therefore established that where such articles are imported in the piece and nothing remains to be done except to cut them apart they shall be treated for dutiable purposes as if already cut apart and assessed according to their individual character or identity. This follows,
however, only in case the character or identity of the individual articles is fixed with certainty and in case the woven piece in its entirety is not commercially capable of any other use.
From the Buss ruling a two-pronged test was developed and applied in HQ 957218 was stated as requiring:
A dedication to use, such that the merchandise is produced in the finished state; the merchandise having no possible use other than that for which it has been dedicated; and
Set dimensions
In Coraggio Design, Inc. v. United States, 12 CIT 143 (1988), rolls of woven drapery fabric measuring 118 inches wide by 50 yards long were imported from Italy. The fabric incorporated a hem on the bottom portion of the roll. In that decision, the Court stated:
The Court finds that the production step of inserting the "Continental hem" comports with the first part of the Buss rule in that the addition of the hem dedicates the material in question for use solely as a drapery, commercially unsuitable for any other use. The imported merchandise fails to satisfy the second requirement of Buss, however, since the addition of the hem does not fix the identity of an individual drapery with certainty. It is well settled that "no matter how close the importation is to the finished article or how dedicated it is to a single use, it remains a material until the identity of actual articles can be seen emerging with certainty from the undifferentiated material."
In Baxter Healthcare Corp. of Puerto Rico v. United States, 182 F.3d 1333 (Fed. Cir. 1999), the Court of Appeals for the Federal Circuit (CAFC) affirmed the decision of the Court of International Trade (CIT) in Baxter Healthcare Corp. of Puerto Rico v. United States, 998 F. Supp. 1133 (C.I.T. 1998). The CIT had held that Customs (in HQ 954822, issued December 22, 1994) had correctly classified merchandise identified as Oxyphan® (a hollow polypropylene filament imported on spools in lengths of ten kilometers) as a synthetic monofilament of heading 5404, HTSUSA, rather than as a part of an oxygenator (a device which mechanically oxygenates venous blood outside of the body). Customs had reasoned that the use of the merchandise as a “part” of an oxygenator could not be discerned at the time of import. Employing the two-pronged analysis discussed above, the CAFC stated:
Whether an imported item that is made into multiple parts after import is classifiable as “parts” of other articles under the HTSUS involves two questions. First, the item must be dedicated solely or principally for use in those articles and must not have substantial other independent commercial uses….[The Court found it undisputed that Oxyphan® had no commercial use other than making membrane oxygenators and was therefore “dedicated” to such use.] Second, if the item as imported can be made into multiple parts of articles, the item must identify and fix with certainty the individual parts that are to be made from it.
In Baxter, the Court noted that each ten-kilometer roll of monofilament contributed material to approximately four oxygenators. The exact length needed per oxygenator would not be known, however, until that particular oxygenator was made. Since individual parts could not be discerned from the spool (which contained no marks or other identifiers), the parts were not identifiable or fixed at the time of import. On this basis, the merchandise was classified as monofilament, rather than as a “part.”
Prior CBP rulings have followed the two-prong test established in Buss. In Headquarters Ruling Letter (HQ) 957218, issued March 24, 1995, this office found that ladder tape which was imported in continuous lengths (also referred to as being imported “in the piece”) constituted a fabric, as opposed to an article created from yarn. The merchandise was classified in subheading 6002.20.1000, HTSUSA. In finding that the ladder tape of HQ 957218 was not a “made up” or finished article, we cited to HQ 956965, issued December 13, 1994, and to HQ 954822, issued December 22, 1994, in which similar issues (i.e., whether the goods in question were classifiable as material or as parts) had been addressed, and in which we stated that the requirements of a two-pronged test must be satisfied to sustain a claim that merchandise, per se, qualifies as a finished article. We went on to find that, because the ladder tape was imported in rolls without any lines of demarcation to identify the individual articles to be cut from the roll, the imported goods lacked dimensions that were “fixed with certainty.” The merchandise was therefore classified not as a finished article of yarn, but as a fabric. See also HQ 960054, issued May 9, 2000.
Protestant argues that while the imported fabrics are designed for eventual use as window shades or blinds; as imported, they do not have the essential character of the complete of finished articles because fabric must undergo manufacturing operations to become complete window shades or blinds.
Like the billiard table fabric, the ladder tape fabric, the drapery fabric, and the monofilament discussed above, the cellular window blind material issue lacks dimensions that are fixed with certainty at the time of import. The imported merchandise fails to satisfy the second of two requirements judicially cited as controlling in Baxter, Coraggio Design, and Buss. For the sake of argument, we will assume that the fabrics are incapable of any use other than as blinds or shades. However, as indicated by the protestant, there remain further processing steps after importation including: cutting to size the fabric and rails, inserting stiffeners into the fabric, drilling holes in the fabric and rails, and assembling of various parts. Consequently, the identity of the finished component has not been fixed with certainty at the time of importation. Therefore, the merchandise cannot be classified as a completed blinds under heading 6303, HTSUS.
Protestant maintains that the merchandise is not “made up” citing Note 7 to Section XI to support their claim. As indicated above, the merchandise appears to be assembled from three inch strips of either the woven or nonwoven fabric. The strips are pleated and glued or otherwise bonded to one another to form series of cells. However, the definition of “made up” found in Note 7(f) cited above seems to fit the description of the merchandise as glued or otherwise bonded. Further, the ENs for Chapter 55 state that the General Explanatory Notes to Section XI (which include Note 7 cited above) should be taken into account in reading the ENs to the Chapter. In accordance with Note 7, Section XI, HTSUS, goods that would otherwise (normally) be classified in Chapters 50 to 55 will be classified in heading 6307, HTSUS, if they are excluded from Chapters 50 to 55 by having been “made up.” Therefore, these glued window blind products cannot be classified under headings 55 or heading 56, HTSUS.
Accordingly, these glued window blind products are properly classifiable under heading 6307, HTSUS.
HOLDING:
By application of GRIs 1 and 6, the merchandise is classified in heading 6307, HTSUS, specifically, in subheading 6307.90.9889, HTSUSA, which provides for “Other made up articles, including dress patterns: Other: Other: Other: Other: The column one, general rate of duty is 7 percent ad valorem.
You are instructed to DENY the protest, except to the extent reclassification of the merchandise as indicated above results in a partial allowance.
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 re-liquidation 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 http://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