HQ 0086067 - Further Review of Protest 3001-9-001306, Dated November 16, 1989 - United States International Trade Commision Rulings

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HQ 086067

DECEMBER 13, 1989

CLA-2 CO:R:C:G 086067 PR

CATEGORY: CLASSIFICATION

TARIFF NO.: 3926.20.5050; 6217.10.0030

District Director of Customs
909 First Avenue
2039 Federal Office Building
Seattle, Washington 98174

RE: Further Review of Protest 3001-9-001306, Dated November 16, 1989

Dear Sir:

This ruling is in response to the above referenced protest which concerns the following entries.

1. No. 0239285, dated September 26, 1989
2. No. 0239332, dated September 26, 1989
3. No. 0240473, dated October 18, 1989

FACTS:

The submitted samples, which we assume are representative of the merchandise covered by each of the above listed entries, are two belts. One belt consists of four or five layers--an outer layer of brown opaque compact plastics laminated to a thicker layer of black cellular plastics; a middle textile fabric layer; and a thick layer of black cellular plastics which has a smooth slightly embossed exterior surface. Without a laboratory analysis, we are unable to determine if that exterior surface layer is a separate compact plastics lamination or a smoothed out portion (possibly by heat and pressure) of the black cellular plastics layer. The various layers are held together by adhesive and the belt is stitched along its perimeter. It has a normal metal belt buckle attached to one end.

The other sample is a section of a mutilated belt. It consists primarily of two combinations (plies) of materials laminated together. One ply is a composite of a thick layer of brown opaque cellular plastics laminated to a woven scrim textile fabric. The other is a composite material of a black knit fabric laminated to an thick opaque layer of black cellular plastics. The plies are laminated together so that the textile fabrics form the center of the belt. The exterior surfaces of the plastics layers each have a thin skin of embossed plastics (particularly the brown plastics surface) which are either formed from their underlying cellular plastics layers or are applied as separate layers of compact plastics. The various layers appear to be held together by adhesive and perimeter stitching.

ISSUE:

The issue presented is whether one or both of the belts are classifiable under Heading 6217, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for other textile clothing accessories, or under Heading 3926, HTSUSA, which provides for other plastics articles.

LAW AND ANALYSIS:

The importer believes tht the belts should be classified as other plastics clothing accessories, in Subheading 3926.20.5050, HTSUSA. The merchandise was classified under the provision for other textile made up clothing accessories of man-made fibers, in Subheading 6217.10.0030, HTSUSA. The basis for this classification is that the belts are "made up" articles within the definition of that term in Note 7(e), Section XI, HTSUSA. Heading 6217 is contained in Chapter 62, HTSUSA, which is part of Section XI, HTSUSA. Note 7 to Section XI, HTSUSA, states, in pertinent part:

7. For the purposes of this Section, the expression "made up" means:

(e) 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 asssembled in layers, whether or not padded).

The classification of merchandise under the HTSUSA is made pursuant to the General Rules of Interpretation (GRI's). In this instance, the reliance on Note 7 is misplaced. Where plastics material and textile fabrics are combined into a composite material and that material is used in the production of an article, we are aware of no authority at the GRI 1 level which allows us to consider that composite material wholly as a textile material. GRI 1 provides, in pertinent part:

[F]or legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do otherwise require, according to the following [general interpretive rules].

GRI 2(a) is applicable to unfinished or incomplete articles and is not pertinent here. GRI 2(b) provides that any reference in a heading to a material or substance shall include a reference to mixtures or combinations of that material or substance with other materials or substances. It also states that any reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material of substance and that the classification of goods consisting of more than one material or substance shall be according to the principles of GRI 3.

General Rule of Interpretation 3, HTSUSA, provides, in pertinent part:

When * * * 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 or part only of the items in a set put up for retail sale, 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, and goods put up in sets for retail sale, 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.

In this instance, Heading 3926 refers to articles of plastics, and Heading 6217, by virtue of Note 1 to Chapter 62, refers to clothing accessories of textile fabrics. Since both headings refer to part only of the materials or substances contained in the belts, pursuant to GRI 3(a), both headings are equally applicable.

Therefore, classification cannot be made in accordance with GRI 3(a) and we must look to GRI 3(b) to determine if one of the materials in the belts imparts the essential character to those belts. In this instance, it is only the plastics material that is visible and that material actually creates the belts. The nonvisible textile fabrics serve to reinforce and strengthen. Most consumers would not be aware of the presence of the textile fabrics. Accordingly, the plastics material furnishes the essential character to the belts, and, in accordance with GRI 3(b), that material determines the classification of the subject merchandise.

HOLDING:

Assuming that the merchandise described above is representative of the imported merchandise, it is classifiable under the provision for other plastics clothing accessories, in Subheading 3926.20.5050, HTSUSA, with duty, as a product of Hong Kong, at the 1989 rate of 5 percent ad valorem. At the time of importation, there were no quota, visa, or export restrictions applicable to the subject merchandise.

Accordingly, you should grant the protest in full. A copy of this ruling shold be attached to the Form 19 Notice of Action to be sent to the protestant.

Sincerely,

John Durant, Director

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