OT:RR:CTF:FTM H289466 MJD
Ms. Elise Shibles
505 Sansome Street,
Suite 1475 San Francisco, CA 94111
RE: Textile Reflective Tapes from Canada
Dear Ms. Shibles:
This is in response to your request, dated February 6, 2012, filed on behalf of Davey Textile Solutions (“Davey”), with respect to the classification of three styles of textile reflective tapes under the Harmonized Tariff Schedule of the United States (“HTSUS”). In reaching the below determination, we have considered information presented in your February 6, 2012, correspondence as well as your supplemental submissions, dated May 17, 2012, and July 25, 2012.
You have asked that certain information submitted in connection with this request be treated as confidential. Inasmuch as this request conforms to the requirements of 19 C.F.R § 177.2(b)(7), your request for confidentiality is approved. The information highlighted in yellow in your submissions, forwarded to our office, will not be released to the public and will be withheld from published versions of this ruling.
FACTS:
The products at issue consist of three types of textile reflective tapes – Style 5, Style 7a, and Style 7 – intended to be attached to safety apparel. All three textile reflective tapes are shipped in rolls to the U.S. The Davey Textile Solutions website states that the textile reflective tapes “are designed for use on a variety of products including safety garments. The film helps enhance visibility at night and in low light conditions, by reflecting the light back to the original source. There are two different applications of the film onto the hi-vis fabric: heat transfer and sew on.”
All three textile reflective tapes have two layers. The first layer is a neon yellow “60-inch wide flame resistant (FR) woven fabric of 55% modacrylic/45% cotton.” The second layer is a silver “narrow width woven aramid fabric coated with glass.” The styles differ in the way the first layer is cut (or not cut) to width, and how the two layers are joined together. For Style 5, the first layer “is cut to various narrower widths and the cut edges are folded under and ironed.” The first layer is joined to the second layer “by a slow heat fusing process.” For Style 7a, the first layer “does not require cutting to width or folding and ironing the cut edges.” The first layer is joined to the second layer “by two rows of parallel stitching.” As for Style 7, “it is not cut to width and the edges are not folded under and ironed.” The first layer is joined to the second layer “by a slow heat fusing process.”
The samples of all three textile reflective tapes were sent to the CBP laboratory in New York for testing. The CBP laboratory Report No. NY20121678 indicated that all three samples consisted of a yellow fabric and a grey reflective tape that was either bonded to the yellow fabric, Style 7 and Style 5, or had a grey reflective tape that was sewn to the yellow fabric, Style 7a. The laboratory report also noted that the reflective tape of Style 7 and Style 5 have a fusible plastic layer backing, and Style 7a has a textile backing. Lastly, the laboratory report gave specifications on the composition of staple cotton and staple acrylic for each style. Style 7a is composed of 54.2% staple acrylic and 45.8% staple cotton, Style 7 is composed of 54.4% staple acrylic and 45.6% staple cotton, and Style 5 is composed of 50.4% staple acrylic and 49.6% staple cotton.
ISSUE:
What is the proper tariff classification of the textile reflective tapes imported by Davey from Canada under the HTSUS?
LAW AND ANALYSIS:
Classification decisions under the Harmonized Tariff Schedule of the United States (“HTSUS”) are 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. Pursuant to GRI 6, classification at the subheading level uses the same rules, mutatis mutandis, as classification at the heading level.
GRI 3 states, in pertinent part:
When by application of [GRI] 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows: (a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods . . . , those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods. (b) Mixtures, composite goods consisting of different materials or made up of different components . . . which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
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The 2019 HTSUS provisions under consideration in this case are as follows:
5514.22 Woven fabrics of synthetic staple fibers, containing less than 85 percent by weight of such fibers, mixed mainly or solely with cotton, of a weight exceeding 170 g/m²: (con.): Dyed: 3-thread or 4-thread twill, including cross twill, of polyester staple fibers.
5806.32 Narrow woven fabrics, other than goods of heading 5807; narrow fabrics consisting of warp without weft assembled by means of an adhesive (bolducs): (con.): Other woven fabrics: Of man-made fibers.
5907.00 Textile fabrics otherwise impregnated, coated or covered; painted canvas being theatrical scenery, studio back-cloths or the like.
6307.90 Other made up articles, including dress patterns: (con.): Other.
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Note 7 to Section XI, which includes Chapters 50-63, provides that:
For the purposes of this section, the expression “made up” means:
Cut otherwise than into squares or rectangles;
(b) 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);
(c) Cut to size and with at least one heat-sealed edge with a visibly tapered or compressed border and the other edges treated as described in any other subparagraph of this note, but excluding fabrics the cut edges of which have been prevented from unraveling by hot cutting or by other simple means;
(d) Hemmed or with rolled edges, or with a knotted fringe at any of the edges, but excluding fabrics the cut edges of which have been prevented from unraveling by whipping or by other simple means;
(e) Cut to size and having undergone a process of drawn thread work;
(f) 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); or
(g) Knitted or crocheted to shape, whether presented as separate items or in the form of a number of items in the length.
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In addition, in interpreting the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) may be utilized. The ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
ENs to Chapter 56 to 63 states in pertinent part:
Under Note 7 to this Section, the expression “made up” in Chapters 56 to 63 means:
(2) Produced in the finished state, ready for use (or merely needing separation by cutting dividing threads) without sewing or other working. Goods of this kind include products knitted or crocheted directly to shape and certain dusters, towels, table cloths, scarf squares, blankets, etc., with threads along the warp left unwoven or the weft edges cut to form a fringe. Such articles may have been woven separately on the loom, but may also have been simply cut from lengths of fabric which have bands of unwoven threads (generally warp threads) at regular intervals. These lengths of fabric, from which ready made articles of the types described above may be obtained by simply cutting the dividing threads, are also considered as “made up” articles.
However, rectangular (including square) articles simply cut out from larger pieces without other working and not incorporating fringes formed by cutting dividing threads 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.
[…]
(6) Assembled by sewing, gumming or otherwise. These articles, which are very numerous, include garments. It should be noted, however, that piece goods consisting of two or more lengths of identical material joined end to end, or composed of two or more textiles assembled in layers, are not regarded as “made up”. Nor are textile products in the piece composed of one or more layers of textile materials assembled with padding by stitching or otherwise.
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EN 63.07 states in pertinent part:
This heading covers made up articles of any textile material which are not included more specifically in other headings of Section XI or elsewhere in the Nomenclature.
It includes, in particular:
[…]
(25) Pieces of textile fabric which have undergone some working (such as hemming or the formation of necklines), intended for the manufacture of garments but not yet sufficiently completed to be identifiable as garments or parts of garments.
[…]
Besides the finished articles listed above, this heading covers articles in the length, made up within the meaning of Note 7 to Section XI, provided they are not included in other headings of Section XI. For instance, it applies to textile draught excluders for doors or windows (including those stuffed with wadding).
In this case, the textile reflective tapes are piece goods. The HTSUS and the ENs do not define “piece goods,” so we must rely on external definitions. Merriam Webster defines the term as “cloth fabrics sold from the bolt at retail in lengths specified by the customer – called also yard good.” Fairchild’s Dictionary of Textiles, defines piece goods as “[f]abrics that are woven in lengths to be sold by the yard in retail stores. May also refer to all goods that are not yet cut into garment pieces.” Fairchild’s Dictionary of Textiles, 423 (7th ed. 1996). Thus, the textile reflective tapes are piece goods because they are not cut to a specific dimension or garment piece, and are imported in bolts.
They are also piece goods according to the exclusionary parenthetical in Note 7(f) to Section XI because they are formed by joining two textiles assembled in layers. In all three styles of textile reflective tapes, the neon yellow FR woven fabric is joined to the silver narrow width glass coated fabric to create a layered textile fabric. Furthermore, the tapes do not meet the requirements of Note 7(b) to Section XI as they are not produced in the finish state, and are not ready for use within the meaning of that note. The textile reflective tapes require additional work after importation; they must be cut and then attached to the safety apparel in order to be used. Therefore, because the textile reflective tapes are piece goods, and because they do not fit under any other provision in Note 7 to Section XI, they are not “made up” articles of Chapter 63.
The textile reflective tapes are also composite goods because they consist of two different fabrics joined together. As a result, no single heading describes the tapes in their entirety. The first layer of fabric in Style 5 is prima facie classifiable in heading 5514, HTSUS, as a woven fabric of synthetic staple fibers. The first layer of fabric in Style 7a and Style 7 is prima facie classifiable in heading 5806, HTSUS, narrow woven fabrics. Lastly, the second layer of all three styles of tape is prima facie classifiable in heading 5907, HTSUS, textile fabrics otherwise impregnated, coated or covered. Consequently, we need to proceed to GRI 3. GRI 3(a) is not applicable because there is no heading that provides a specific description that clearly describes the textile reflective tapes. Therefore, we must apply GRI 3(b) to classify the textile reflective tapes.
According to GRI 3(b), a composite good that cannot be classified according to GRI 3(a) will be classified according to the component of the good that imparts the essential character of the good. It is well established that the essential character of a good is “that which is indispensable to the structure, core or condition of the article, i.e., what it is” and has “the most outstanding and distinctive characteristic of the article.” Structural Indus. v. United States, 360 F. Supp. 2d 1330, 1336 (Ct. Int’l Trade 2005). EN VIII to GRI 3(b) explains that “[t]he factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of the constituent material in relation to the use of the goods.”
Regarding the instant textile reflective tapes, the second layer, which is a narrow width woven fabric coated with glass, heading 5907, HTSUS, is the most indispensable part of the fabric and embodies the purpose of the tape and its utility. Comparing the cost and value of the first layer of FR woven fabric and the second layer of glass coated fabric, it is the second layer that is of greater cost and value. In Style 5, the second layer of glass coated fabric cost is $0.69 per meter, while the first layer cost is $0.55 per meter. The second layer of glass coated fabric is 56% of the value of the textile reflective tape. In Style 7a, the second layer of glass coated fabric cost is $0.91 per meter, while the first layer cost is $0.34 per meter. The second layer of glass coated fabric is 73% of the value of the tape. In Style 7, the second layer of glass coated fabric cost is $0.69 per meter, while the first layer cost is $0.34 per meter. The second layer of glass coated fabric is 67% the value of the tape. Accordingly, for all three styles of tape, the second layer is the “outer-most layer on the surface of the fabric.”
Additionally, CBP laboratory conducted an analysis on all three styles of tapes and reported that on each style it was the silver glass coated fabric that was either bonded to or sewn to the yellow fabric that was the reflective tape component of the fabric. Hence, while the neon yellow textile fabric is important to the tape because it provides backing to the silver fabric and is flame resistant, it is the silver narrow width glass coated fabric that makes the textile reflective tape a reflective tape to begin with, and it is the characteristic of the tape that makes it “what it is.” See Structural Indus., 360 F. Supp. 2d at 1336. Without the silver glass coated fabric piece, the textile would cease to be a reflective tape. For this reason, it is the second layer of fabric, the silver glass coated fabric, which imparts the essential character of the tape under GRI 3(b). Therefore, the textile reflective tapes are classified in heading 5907.00, HTSUS, as “Textile fabrics otherwise impregnated, coated or covered; painted canvas being theatrical scenery, studio back-cloths or the like.”
HOLDING:
By application of GRI 3(b), the textile reflective tapes at issue are properly classified under heading 5907, HTSUS, specifically under subheading 5907.00.6000, HTSUS, which provides for “Textile fabrics otherwise impregnated, coated or covered; painted canvas being theatrical scenery, studio back-cloths or the like: Other: Of man-made fibers.” The column one, general rate of duty is free.
A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.
Sincerely,
Yuliya A. Gulis, Chief
Food, Textiles, and Marking Branch