Reconsideration of New York Ruling Letters NY L86737, NY L87997, and NY N090792; Tariff Classification of a sleeve protector

HQ H145551 November 7, 2011 CLA–2 OT:RR:CTF:TCM H145551 AMM CATEGORY: Classification TARIFF NO.: 6217.10.95 Mr. Michael Cone McCullogh Ginsberg Montano & Partners, LLP320 East 53rd St., Suite 100 New York, NY 10022 RE: Reconsideration of New York Ruling Letters NY L86737, NY L87997, and NY N090792; Tariff Classification of a sleeve protector Dear Mr. Cone, This is in reference to your request for a reconsideration of New York Ruling Letters (NY) NY L86737, dated September 14, 2005, NY L87997, dated October 28, 2005, and NY N090792, dated February 12, 2010, regarding the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of sleeve protector, identified as Style AS019S, on behalf of your client, Performance Fabrics, Inc., d/b/a HexArmor. In those rulings, Customs and Border Protection (CBP) classified the AS019S Sleeve Protector under heading 6217, HTSUS, which provides for “Other made up clothing accessories”. We have taken into consideration your original request, submitted on January 19, 2011, three supplemental submissions (dated March 25, 2011, August 19, 2011, and September 26, 2011), a sample submitted for review, and the meeting with CBP officials held on October 5, 2011. FACTS: In NY L86737, CBP described the instant merchandise as follows: Style “AS019S” is a protective sleeve constructed of a woven nylon fabric with a resin coating in a uniform octagon-like pattern on the outer surface. The item measures 19-inches in length and is bent to accommodate the elbow area. The opening close to the hand is secured by hook and loop fasteners and a plastic clasp with an elastic band and a metal alligator clip are found at the upper arm opening. In NY N090792, CBP described the instant merchandise as follows: The submitted sample is a HexArmor® AS019S Protective Sleeve that is constructed of SuperFabric® woven man made fiber fabric that is covered with tiny plasticized resin guard plates. The protective sleeve is approximately 19 inches in length, is bent at the elbow, has a hook and loop strip closure, a thumb hold, and is cut and puncture resistant. The AS019S Sleeve Protector is used as Personal Protective Equipment (PPE) to protect workers from various injuries while engaged in hazardous employment. It is cut-, puncture-, and abrasion-resistant, and is designed to protect an area from the upper wrist to the upper bicep. According to your first supplemental submission, dated March 14, 2011, the AS019S Protective Sleeve is manufactured from SuperFabric Style 700745 (SuperFabric). During the manufacturing process of SuperFabric, the plastic epoxide resin is pressed through a screen onto the textile substrate. This treatment results in the plastic material being intentionally “screenprinted” onto the textile substrate in an octagonal geometric design, identified as “Penta 83/09”. See also U.S. Patent Appln. No. 12/036,813. Furthermore, your third supplemental submission, dated September 26, 2011, indicates that the textile component of the SuperFabric is made of entirely of woven polyester filament fibers. Although ruling letters NY L86737 and NY L87997 state that the SuperFabric is composed of nylon fibers, you stated in telephone conversations that the rulings are incorrect in this regard. Ruling Letters NY L86737, NY L87997, and NY N090792, dated February 12, 2010, classified the AS019S Sleeve Protector under subheading 6217.20.95, HTSUS, which provides for: “Other made up clothing accessories; parts of garments or of clothing accessories, other than those of heading 6212: Accessories: Other: Other”. ISSUE: What is the proper classification of the AS019S Sleeve Protector 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 2011 HTSUS provisions at issue are as follows: 3926 Other articles of plastics and articles of other materials of headings 3901 to 3914: 3926.20 Articles of apparel and clothing accessories (including gloves, mittens and mitts): Other: 3926.20.90 Other --------------------------------------------------------------------- 3926 Other articles of plastics and articles of other materials of headings 3901 to 3914: 3926.90 Other: 3926.90.99 Other --------------------------------------------------------------------- 6217 Other made up clothing accessories; parts of garments or of clothing accessories, other than those of heading 6212: 6217.10 Accessories: Other: 6217.10.95 Other --------------------------------------------------------------------- 6307 Other made up articles, including dress patterns: 6307.90 Other: Other: 6307.90.98 Other --------------------------------------------------------------------- Note 2(p) to Chapter 39, HTSUS, states, in pertinent part: “This chapter does not cover: … (p) Goods of section XI (textiles and textile articles); …”. Note 1(h) to Section XI, (which covers Chapters 62 and 63) HTSUS, states, in pertinent part: “This section does not cover: … (h) Woven, knitted or crocheted fabrics, felt or nonwovens, impregnated, coated, covered or laminated with plastics, or articles thereof, of chapter 39; …”. Note 7(b) to Section XI, HTSUS, states, in pertinent part: For the purposes of this section, the expression “made up” means: * * * (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); * * * Note 2(a)(4) to Chapter 59, HTSUS, states, in pertinent part: Heading 5903 applies to: (a) Textile fabrics, impregnated, coated, covered or laminated with plastics, whatever the weight per square meter and whatever the nature of the plastic material (compact or cellular), other than: * * * (4) Fabrics partially coated or partially covered with plastics and bearing designs resulting from these treatments (usually chapters 50 to 55, 58 or 60); * * * Note 2 to Chapter 63, HTSUS, states, in pertinent part: “Subchapter 1 [which includes heading 6307, HTSUS] does not cover: (a) Goods of chapters 56 to 62; …”. The Harmonized Commodity Description and Coding System Explanatory Notes (EN), constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN 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 Chapter 39 states, in pertinent part: Plastics and textile combinations Wall or ceiling coverings which comply with Note 9 to this Chapter are classified in heading 39.18. Otherwise, the classification of plastics and textile combinations is essentially governed by Note 1 (h) to Section XI, Note 3 to Chapter 56 and Note 2 to Chapter 59[.] * * * The EN to Heading 39.26 states, in pertinent part: This heading covers articles, not elsewhere specified or included, of plastics (as defined in Note 1 to the Chapter) or of other materials of headings 39.01 to 39.14. They include: (1) Articles of apparel and clothing accessories (other than toys) made by sewing or sealing sheets of plastics, e.g., aprons, belts, babies’ bibs, raincoats, dress-shields, etc[.] * * * In CBP’s previous rulings (NY L86737, NY L87997, and NY N090792), the AS019S Sleeve Protector was classified under heading 6217, HTSUS, which provides for “Other made up clothing accessories”. The instant product is made mostly from another product called SuperFabric. You argue that the SuperFabric is actually a “plastic” under Chapter 39, HTSUS, and therefore the AS019S Sleeve Protector should be classified as an “article of plastic” under heading 3926, HTSUS. In the alternative, you argue that the instant product is not an accessory, and that it is properly classified under heading 6307, HTSUS. You argue that, with regard to headings 3926 and 6217 (or 6307), HTSUS, there are competing exclusionary notes which, if they were to operate, would each exclude the instant product from the other heading. Note 2(p) to Chapter 39, HTSUS, excludes goods of Section XI (which includes Chapters 62 and 63), HTSUS, from classification in Chapter 39, HTSUS. Note 1(h) to Section XI, HTSUS, excludes “[w]oven, knitted or crocheted fabrics, felt or nonwovens, impregnated, coated, covered or laminated with plastics, or articles thereof, of chapter 39” from classification in Section XI, HTSUS. You argue that, because these notes are competing, our analysis is governed by Bauer Nike Hockey USA, Inc. v. United States, 393 F.3d 1246 (Fed. Cir. 2004) (Bauer Nike II). In Bauer Nike II, the court considered the classification of imported hockey pants consisting of a nylon or polyester outer shell and an interior assembly of hard nylon plastic guards and soft padding. The hockey pants were specially designed to protect the wearer from injury while playing ice hockey. Id., at 1248. CBP and the Court of International Trade (CIT) had classified the hockey pants under heading 6211, HTSUS, as “other garments”. See Headquarters Ruling Letter (HQ) 962072, dated August 12, 1999; Bauer Nike Hockey USA, Inc. v. United States, 305 F. Supp. 2d 1345 (Ct. Int’l. Trade 2003) (Bauer Nike I). The plaintiff argued that the goods were properly classified under heading 9506, HTSUS, as “equipment for … other sports”. The Court of Appeals for the Federal Circuit (CAFC) found that the hockey pants were prima facie classifiable under both headings, and applied GRI 3(a) to classify the goods under heading 9506, HTSUS. Bauer Nike II, at 1252-3. In accordance with Bauer Nike II, CBP must first consider whether the instant AS019S Sleeve Protector is prima facie classifiable under headings 3926, 6217 and 6307, HTSUS, before considering the operation of Note 2(p) to Chapter 39, HTSUS, or Note 1(h) to Section XI, HTSUS. CBP notes that, with regard to heading 6307, HTSUS, there is no competing exclusionary note between it and heading 6217, HTSUS. Therefore, if the instant product is properly classified under heading 6217, HTSUS, Bauer Nike II would not halt the operation of Note 2(a) to Chapter 63, HTSUS. A. Classification Under Heading 3926, HTSUS Heading 3926, HTSUS, provides in pertinent part for “Other articles of plastics”. The instant sleeve protector, in its condition as imported, it is constructed mostly of a woven nylon fabric coated with a plastic epoxide resin known as SuperFabric. The product also has fabric trim, a PVC label, a fabric thumb loop which incorporates an elastic material, and a metal alligator clip designed to attach the top of the sleeve protector to a person’s shirt sleeve. In your submissions, you argue: (1) that the SuperFabric is a plastic material, and (2) because the instant sleeve protector is made mostly of SuperFabric, it is then properly classified as an article of plastic. See HQ 963581, dated March 31, 2000; EN 39.26(1). The proper classification of SuperFabric, when imported separately, is not at issue in this case. SuperFabric is not manufactured or imported by your client, HexArmor. However, it is necessary in to determine whether SuperFabric is a “plastic,” in order to determine whether the instant sleeve protector can be classified under heading 3926, HTSUS, as “other articles of plastic.” CBP notes that, because the manufacturer and importer of SuperFabric are not a party to this ruling, it should not be considered binding with respect to that product. The instant AS019S sleeve protector is constructed mostly from SuperFabric, which is a woven polyester filament fabric with a resin coating in a uniform octagon-like pattern on the outer surface. The manufacturer of the SuperFabric uses a “screenprinting” process to apply the plastic resin guard plates onto the textile substrate. The plates are laid down in a mathematical Penrose tile arrangement, consisting of interlocking squares and pentagons which form a roughly octagonal shape. Between each guard plate is a small gap. See U.S. Patent Appln. No. 12/036,813, paras. 0022-0023 and figs. 3-4. Heading 5903, HTSUS, provides in pertinent part for “[t]extile fabrics impregnated, coated, covered or laminated with plastics …”. However, fabrics which meet the terms of this heading, but are “partially coated or partially covered with plastics and bearing designs resulting from these treatments (usually chapters 50 to 55, 58 or 60)” are specifically excluded from heading 5903, HTSUS. See Note 2(a)(4) to Chapter 59, HTSUS. In your original submission, dated January 19, 2011, you argued that the SuperFabric is excluded from heading 5903, HTSUS, by Note 2(a)(4) to Chapter 59, HTSUS. SuperFabric is a textile fabric, in that it is a woven polyester fabric. Furthermore, it is partially coated with a plastic epoxide resin, in that it is only coated on one side of the fabric. Finally, you argued in that, because the resin is applied in a distinct octagonal pattern, which you identified as “Penta 83/09.” CBP agrees that SuperFabric is a textile fabric, partially coated with plastics and bearing designs resulting from these treatments, and is excluded from heading 5903, HTSUS, by Note 2(a)(4) to Chapter 59, HTSUS. You also argue that the SuperFabric is properly classified as a plastic sheet under heading 3921, HTSUS. The term “sheets” is not defined in the text of the HTSUS or the Explanatory Notes. When, as in this case, a tariff term is not defined by the HTSUS or its legislative history, “the term’s correct meaning is its common meaning.” Mita Copystar Am. v. U.S., 21 F.3d 1079, 1082 (Fed. Cir. 1994). The common meaning of a term used in commerce is presumed to be the same as its commercial meaning. Simod Am. Corp. v. U.S., 872 F.2d 1572, 1576 (Fed. Cir. 1989). To ascertain the common meaning of a term, a court may consult “dictionaries, scientific authorities, and other reliable information sources” and “lexicographic and other materials.” C.J. Tower & Sons v. U.S., 673 F.2d 1268, 1271 (C.C.P.A. 1982); Simod, 872 F.2d at 1576. CBP has previously had occasion to consider the meaning of the term “sheets.” See HQ H090861, dated October 12, 2010. “Sheeting,” can be defined as: “1: material in the form of sheets or suitable for forming into sheets: as … b: material (as a plastic) in the form of a continuous film …”. Webster’s Third New International Dictionary (1986), p. 2092. “Sheet” can be defined as “9a: A relatively thin piece of considerable breadth of a malleable, ductile, or pliable substance.” The Oxford English Dictionary (2d Ed. 1989), p. 224. The CIT has also examined the term “sheet.” In 3G Mermet Fabric Corp. v. United States, 135 F. Supp. 2d 151, 156 (Ct. Int’l. Trade 2001), the CIT defined “sheet” as a “material in the form of a continuous stem [sic] covering or coating.” In Sarne Handbags Corp. v. United States, 100 F. Supp. 2d 1126, 1134 (Ct. Int’l. Trade 2000), the CIT stated that: “the common meaning of ‘sheeting’ is material in the form of or suitable for forming into a broad surface of something that is unusually thin, or is a material in the form of a continuous thin covering or coating.” According to your first supplemental submission, the epoxide resin is “screenprinted” onto the textile substrate. As a result of this process, the epoxide resin is deposited onto the textile substrate in a series of small, unconnected squares and pentagons. The process used to manufacture does not create a sheet of plastic. The plastic is not in the form of a continuous film, covering, coating, or surface. Instead, the manufacturing process deposits discrete armor plates onto the textile substrate in the form of a design, leaving small gaps between each plate. Therefore, because the SuperFabric is not a “sheet” under the definitions given above, it is not properly classified under heading 3921, HTSUS, as “Other … sheets … of plastic”. Heading 5407, HTSUS, provides for “Woven fabrics of synthetic filament yarn …”. According to your submissions, the instant SuperFabric is made of woven polyester filament fibers. Thus, it is classifiable in heading 5407, HTSUS. However, CBP does not have enough information about the SuperFabric product to correctly identify which subheading it should be classified in. As discussed above, the instant SuperFabric is not classifiable as a plastic material, as you argue. It is a textile of heading 5407, HTSUS. Therefore, the instant sleeve protector is not classifiable under heading 3926, HTSUS, as an “Other article of plastic”. You cite New York Ruling Letter (NY) I81715, dated May 31, 2002, and HQ 965821, dated December 9, 2002 (which affirmed part of NY I81715), in support of your position that the instant sleeve protector is properly classified under heading 3926, HTSUS. These rulings considered the classification of the V-Top Personal Impact Protection System, which consists of sectional body armor worn on various areas of the person. The V-Top Arms and V-Top Shin Guards, made of woven nylon fabric, knit polyester mesh fabric, and an impact resistant polypropylene plastic, were classified under heading 3926, HTSUS. See NY I81715. CBP’s position in those rulings is not inconsistent with the position taken herein. Furthermore, you cite the case of Value Vinyls, Inc., v. United States, 31 C.I.T. 173 (Ct. Int’l. Trade 2007), aff’d 568 F.3d 1374 (Fed. Cir. 2009), in support of your contention that SuperFabric is properly classified under heading 3921, HTSUS. In Value Vinyls, the CIT considered a polyester fabric coated on both sides with PVC plastic. There was no dispute between the parties as to whether this product was classified under heading 3921, HTSUS, as “Other … sheets … of plastics”. Instead, the issue was the proper classification at the 8-digit subheading level. Id., at 175-6. Your reliance on this court case is misplaced. B. Classification Under Heading 6217, HTSUS Heading 6217, HTSUS, provides in pertinent part for “Other made up clothing accessories”. The phrase “made up” means “Produced in the finished state, ready for use (or merely needing separation by cutting dividing threads) without sewing or other working …”. See Note 7(b) to Section XI, HTSUS. Samples of the instant sleeve protector were provided to CBP for review. The article is comprised mostly of the aforementioned SuperFabric, which has been knitted into the general shape of a person’s arm. It is designed to crease at the elbow when worn, to facilitate the wearer’s movement. It has a thumb loop at one end, and an alligator clip to attach to a person’s shirt at the other. These features work together to anchor the instant sleeve protector in place while it is worn. The instant article appears to have been produced in a finished state, and is ready for use as a sleeve protector. Therefore, it satisfies the definition of “made up” as stated in Note 7(b) to Section XI, HTSUS. The term “accessory” is not defined in the HTSUS or in the ENs. However, this office has stated that the term “accessory” is generally understood to mean an article which is not necessary to enable the goods with which they are intended to function. They are of secondary importance, but must, however, contribute to the effectiveness of the principal article (e.g., facilitate the use or handling of the particular article, widen the range of its uses, or improve its operation). See HQ 958710, dated April 8, 1996; HQ 950166, dated November 8, 1991. We also employ the common and commercial meanings of the term “accessory”, as the courts did in Rollerblade v. United States, wherein the CIT derived from various dictionaries that an accessory must relate directly to the thing accessorized. See Rollerblade v. United States, 116 F.Supp. 2d 1247 (Ct. Int’l. Trade 2000), aff’d, 282 F.3d 1349 (Fed. Cir. 2002) (holding that inline roller skating protective gear is not an accessory because the protective gear does not directly act on or contact the roller skates in any way); See also HQ 966216, dated May 27, 2003. CBP has classified similar styles of sleeve protectors as accessories. In HQ H006230, dated May 14, 2008, CBP classified a “Model 4000 series knit sleeve”, which was a knit sleeve protector constructed of Kevlar® material. CBP found that this article was an accessory, classifiable under heading 6117, HTSUS, because it was a “functional article that augment[s] a garment (in this case, either a long-sleeve or short-sleeve shirt) to provide the user with a protective barrier between the bare arms or shirt sleeves and the surrounding environment.” See HQ H006230. Furthermore, CBP noted that “[t]he merchandise at issue here enhances the ability of a long-sleeved shirt to protect the wearer from abrasions or cuts, thus serving as clothing accessories covered in heading 6117, HTSUS.” See id. See also HQ 965135, dated April 15, 2002 (classifying a disposable polypropylene sleeve protector as an “accessory” under heading 6217, HTSUS); HQ 961080, dated September 14, 1999 (classifying a disposable nylon/polyurethane sleeve protector as an “accessory” under heading 6217, HTSUS); HQ 961108, dated September 2, 1999 (classifying a disposable Tyvek® sleeve protector as an “accessory” under heading 6217, HTSUS). The AS019S Sleeve Protector is used as PPE to protect workers from various injuries while engaged in hazardous employment. It is cut-, puncture-, and abrasion-resistant, and is designed to protect an area from the upper wrist to the upper bicep. It is made almost entirely of the SuperFabric discussed above. The opening close to the hand is secured by a fabric loop which wraps around the thumb. The opening close to the upper arm features an alligator clip designed to attach directly to the wearer’s long- or short-sleeve shirt, preventing the instant sleeve protector from slipping down the arm during use. It is meant to be worn with a shirt, to provide workers with additional protection from hazardous work environments. It is not meant to be worn without a shirt, or instead of a shirt. The AS019S Sleeve Protector meets the test of Rollerblade, in that it bears a direct relationship to the article it is meant to accessorize, namely a long- or short-sleeve shirt. It is properly classified as an “accessory”. Therefore, the instant sleeve protector is properly classified under heading 6217, HTSUS, specifically under subheading 6217.10.95, HTSUS, which provides for “Other made up clothing accessories …: Accessories: Other: Other”. You cite HQ 959595, dated March 24, 1999, in support of your position that the instant sleeve protector is not an accessory. In that ruling, CBP considered a chainsaw protective vest made of textile and plastic, designed to protect the wearer from chainsaw injury. CBP found that the chainsaw protective vest was “not designed to be subordinate in importance to any other item of clothing”, and that it was “fully intended to be essential in and of itself by providing protection from bodily harm.” See HQ 959595. CBP found that the chainsaw protective vest was properly classified under heading 6211, HTSUS, as an “other garment”. The vest in that ruling was found to be an article of clothing in and of itself, not subordinate to any other item of clothing. See HQ 959595. The AS019S Sleeve Protector is different, because it is a functional article that augments the ability of a long-sleeve or short-sleeve shirt to protect the wearer from abrasions or cuts. C. Classification Under Heading 6307, HTSUS Finally, you argue that the AS019S Sleeve Protector should be classified under heading 6307, HTSUS, which provides for “Other made up articles …”. However, because the article is properly classified under heading 6217, HTSUS, as discussed above, it is precluded from classification under heading 6307, HTSUS, by Note 2(a) to Chapter 63, HTSUS. D. Analysis Under GRI 1 As discussed above, the instant sleeve protector is fully described by the terms of heading 6217, HTSUS, which provides for “other made up clothing accessories”. Because it is not properly classified under heading 3926, HTSUS, which provides for “other articles of plastic,” Note 2(p) to Chapter 39, HTSUS, and Note 1(h) to Section XI, HTSUS, do not operate. Finally, the instant sleeve protector is precluded from classification under heading 6307, HTSUS, by operation of Note 2(a) to Chapter 63, HTSUS. Therefore, the instant sleeve protector is classified specifically under subheading 6217.10.95, which provides for “Other made up clothing accessories; parts of garments or of clothing accessories, other than those of heading 6212: Accessories: Other: Other”. CBP further notes that the analysis of Bauer Nike II does not apply in this case, because the instant sleeve protector is not prima facie classifiable under two different headings. See Bauer Nike II, 393 F.3d at 1252, FN 6. See also Lemans Corp. v. United States, ___ F.3d ___, 2011 U.S. App. Lexis 20026, *28-*29, FN 7 (Fed. Cir. 2011). HOLDING: By application of GRI 1, the AS019S Sleeve Protector is classified under heading 6217, HTSUS, specifically under subheading 6217.10.95, HTSUS, which provides for: “Other made up clothing accessories; parts of garments or of clothing accessories, other than those of heading 6212: Accessories: Other: Other”. The general, column one rate of duty is 14.6% ad valorem. Duty rates are provided for your convenience and are subject to change. EFFECT ON OTHER RULINGS: Rulings NY L86737, dated September 14, 2005, NY L87997, dated October 28, 2005, and NY N090792, dated February 12, 2010, are hereby AFFIRMED. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division