Reconsideration of New York Ruling Letter N119330; classification of a textile fabric bin

HQ H130595 November 18, 2013 CLA–2 OT:RR:CTF:TCM H130595 AMM CATEGORY: Classification TARIFF NO.: 6307.90.98 Ms. Geri Davidson The Container Store 500 Freeport Pkwy Coppell, TX 75019 RE: Reconsideration of New York Ruling Letter N119330; classification of a textile fabric bin Dear Ms. Davidson, This is in response to your request for reconsideration, made on behalf of The Container Store, of New York Ruling Letter (NY) N119330, dated August 24, 2010, which pertains to the classification of a textile fabric bin, under the Harmonized Tariff Schedule of the United States (HTSUS). In reaching our decision, we have taken into consideration your submission, dated October 13, 2010. FACTS: In NY N119330, the merchandise at issue was described as the “Square Urbino Bin, SKU 10043850 … a box made of knitted or crocheted polypropylene yarn and measures 5-1/2" square and 4" deep. The top is folded over, creating a cuff at the top.” In your submission, you further indicate that the material is crocheted polypropylene of a cordage type, rather than yarn. In that ruling, the Square Urbino Bin was classified under heading 6307, HTSUS, specifically under subheading 6307.90.98, HTSUS, which provides for: “Other made up articles, including dress patterns: Other: Other: Other”. ISSUE: What is the proper classification of the Square Urbino Bin under the HTSUS? LAW AND ANALYSIS: Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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 GRI may then be applied. The 2013 HTSUS provisions at issue are as follows: 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 --------------------------------------------------------------------- 6307 Other made up articles, including dress patterns: 6307.90 Other: Other: 6307.90.98 Other Note 7 to Section XI, HTSUS, which includes Chapters 54 and 63, states, in pertinent part: “For the purposes of this section, the expression ‘made up’ means: … (g) Knitted or crocheted to shape, whether presented as separate items or in the form of a number of items in the length.” Note 1 to Chapter 54, HTSUS, states: Throughout the tariff schedule, the term "man-made fibers" means staple fibers and filaments of organic polymers produced by manufacturing processes, either: (a) By polymerization of organic monomers to produce polymers such as polyamides, polyesters, polyolefins or polyurethanes, or by chemical modification of polymers produced by this process (for example, poly(vinyl alcohol) prepared by the hydrolysis of poly(vinyl acetate)); or * * * The terms "synthetic" and "artificial", used in relation to fibers, mean: synthetic: fibers as defined at (a); artificial: fibers as defined at (b). Strip and the like of heading 5404 or 5405 are not considered to be man-made fibers. The terms "man-made", "synthetic" and "artificial" shall have the same meanings when used in relation to "textile materials". Note 1 to Chapter 63, HTSUS, states: “Subchapter 1 applies only to made up articles, of any textile fabric.” Note 2 to Chapter 63, HTSUS, states, in pertinent part: “Subchapter 1 does not cover: (a) Goods of chapters 56 to 62; …” The Harmonized Commodity Description and Coding System Explanatory Notes (ENs), constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the headings. It is CBP’s practice to consult, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89–80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). The General EN to Section XI (which includes Chapters 56 and 63), states, in pertinent part: In general, Section XI covers raw materials of the textile industry (silk, wool, cotton, manmade fibres, etc.), semimanufactured products (such as yarns and woven fabrics) and the made up articles made from those products. * * * (II) CHAPTERS 56 TO 63 Chapters 56 to 63 cover certain kinds of textile fabrics and other textile articles not covered by Chapters 50 to 55 (e.g., pile fabrics; narrow woven fabrics; chenille yarn, gimped yarn, braids, galloons and other trimmings of heading 56.06 or 58.08; tulles and other net fabrics; lace; embroidery on woven fabrics or other textile materials; knitted or crocheted goods). They also include (subject to exclusions regarding certain articles classified elsewhere than in Section XI) made up textile articles. Made up articles. Under Note 7 to this Section, the expression “made up” in Chapters 56 to 63 means: * * * (7) Knitted or crocheted to shape, whether presented as separate items or in the form of a number of items in the length. * * * EN 56.09 states, in pertinent part: “The heading does not cover: … (c) Textile fabrics and articles made from such fabrics, which are classified in their appropriate headings (e.g., shoe laces made from braids are classified in heading 63.07).” The General EN to Chapter 60 states, in pertinent part: This Chapter covers textile fabrics which are manufactured, not like woven fabrics by interlacing warp and weft threads, but by the production of a series of interlinking loops. In general, these goods comprise: * * * (B) Crocheted fabrics, formed by a continuous thread worked by hand with a crochet hook to produce a series of loops pulled one through the other and forming, according to the manner of grouping the loops, either a plain or an ornamental fabric of close or open-work design. Certain open-work fabrics have chains of loops formed into squares, hexagons or other ornamental patterns. * * * In NY N119330, Customs and Border Protection (CBP) classified the Square Urbino Bin under heading 6307, HTSUS. In your request for reconsideration of this ruling, you argue that polypropylene is not a textile, and that the Square Urbino Bin, which is made of 100% flexible crocheted polypropylene, is properly classified under heading 5609, HTSUS, as an article of cordage. If the Square Urbino Bin is properly classified under heading 5609, HTSUS, it cannot also be classified under heading 6307, HTSUS. See Note 2(a) to Chapter 63, HTSUS. Therefore, it is appropriate to first consider whether the instant merchandise is properly classified under heading 5609, HTSUS. Heading 5609, HTSUS, provides for “Articles of yarn, strip or the like of heading 5404 or 5405, twine, cordage, rope or cables, not elsewhere specified or included”. You assert that the Square Urbino Bin is made from crocheted polypropylene of a cordage type, and that the instant product is properly classified under heading 5609, HTSUS, an “article of … cordage … not elsewhere specified or included.” However, EN(c) to 56.09 states that the heading does not cover “Textile fabrics and articles made from such fabrics …”. Therefore, if the instant merchandise is an article made from a textile fabric, then it is not covered by heading 5609, HTSUS. According to the General EN to Section XI (which covers Chapters 56 and 63), the section covers “raw materials of the textile industry (… man made fibres, etc.), semi manufactured products … and the made up articles made from those products.” The term “man made fibers” is defined as “[F]ilaments of organic polymers produced by … polymerization of organic monomers to produce polymers such as … polyolefins[.]” Note 1(a) to Chapter 54, HTSUS, lists polymers that can be produced in textile form. Included are polyolefins, and polypropylene is an olefin. Therefore, polypropylene filament that is formed into a fabric (crocheted) is considered a “textile.” The term “fabric” is not defined in the tariff. The Court of International Trade (CIT) defines “fabric” as “a cloth produced especially by knitting, weaving, or felting fibers.” Pac Fung Leather Co., Ltd. v. United States, 911 F.Supp. 529, 536 (Ct. Int’l. Trade 1995) (citing The American Heritage Dictionary, p. 484 (2d 1982)). See also Headquarters Ruling Letter (HQ) H007440, dated November 9, 2007. Fabric may also be produced by the process of crocheting. See General EN(B) to Chapter 60; HQ 966131, dated April 23, 2003. The instant product is made from crocheted polypropylene, which is a fabric. The polypropylene is crocheted into a fabric, which is then formed into the instant article. Thus, the instant product is an article made from textile fabric, and is not properly classified in heading 5609, HTSUS. See EN(c) to 56.09. To be classified under heading 6307, the Urbino Bin must be a made up article, of any textile fabric. See Note 1 to Chapter 63, HTSUS. According to Note 7(f) of Section XI, HTSUS, the definition of “made up” includes “knitted or crocheted to shape, whether presented as separate items or in the form of a number of items in the length”. The Urbino Bin is made of crocheted polypropylene fabric formed into a box shape which measures 5 1/2 inches square and 4 inches deep. The Urbino Bin meets the definition of a made up article of any textile fabric, and is properly classified under heading 6307, HTSUS, specifically 6307.90.98, HTSUS. HOLDING: By application of GRI 1, Square Urbino Bin is classified under heading 6307, HTSUS, specifically under specifically under subheading 6307.90.98, HTSUS, which provides for: “Other made up articles, including dress patterns: Other: Other: Other”. The general column one rate of duty is 7% ad valorem. Your request for reconsideration is DENIED. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/. EFFECT ON OTHER RULINGS: New York Ruling Letter N119330, dated August 24, 2010, is AFFIRMED. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division