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HQ 957218




March 24, 1995

CLA-2 CO:R:C:T 957218 jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 6002.20.1000

District Director
U.S. Customs Service
700 Doug Davis Drive
Atlanta, GA 30354

RE: Decision on Application for Further Review of Protest No.1704-94-100149; ladder tape; definition of "technical use" as per the requirements of chapter 59, Note 7(a)(b); HQ 954822 and HQ 956965; heading 6002, HTSUSA; knitted fabrics

Dear Sir:

This is a decision on application for further review of a protest timely filed on behalf of Turnils Inc., on April 12, 1994, against your decision regarding the classification of ladder tape. All entries were liquidated on March 18, 1994. A sample was provided to this office for examination.

FACTS:

The merchandise at issue consists of "ladder tape" (also known as ladder string), which is a knitted fabric approximately 3-1/2 centimeters in width. It is knitted into stable open meshes forming a ladder-like configuration consisting of two parallel lengths of knitted portions approximately two millimeters in width, which run along both edges of the fabric. Between these two portions, which resemble the two "upright" portions of a ladder, are "rungs" which consist of pairs of yarns which connect the two upright portions at approximately two centimeter intervals. In response to Customs Request for Information, it was stated that the ladder tape is constructed from high tenacity polyester yarn and that it is of weft construction. Though we do not hold issue with the protestant's claim that the merchandise is constructed of polyester yarn, a report by our New York Customs Laboratory reveals that the ladder tape is of warp knit construction, and not as stated by the manufacturer, weft knit.

The fabric is imported in continuous lengths and is used to support the slats in venetian blinds. The slats are inserted through the ladder tape, and the rungs, or cross sections of the ladder tape, ensure that the slats stay in place. The longer portions of the ladder tape assist in raising and lowering the venetian blinds. After importation, the bottom portion of the ladder tape is affixed to the bottom rail of the blind by a knot. The ladder tape is then cut to length and the top of the ladder tape is attached to a component called a tape roll.

The protestant contends that the ladder tape was improperly classified by Customs in subheading 6002.20.1000, HTSUSA, which provides for other knitted or crocheted fabrics, of a width not exceeding 30 cm, open-work fabrics, warp knit. It is argued that the ladder tape is not a fabric, but an article or product of textile and as such, properly classified in heading 5911, HTSUSA, in the provision for textile products and articles for technical uses. In the alternative, protestant proposes that the ladder tape should be classified in heading 5609, HTSUSA, in the provision for articles of yarn, not elsewhere specified or included. In the event that Customs determines that the merchandise is in fact a fabric, counsel proposes heading 6002, HTSUSA, in the provision for other knitted or crocheted fabrics, of man-made fibers.

The arguments set forth in the Memorandum in support of the protest are as follows:

(1) ladder tape is a finished component, not a fabric, for tariff classification purposes; this is reflected in a number of sources: HQ 555671, dated March 15, 1991; the Explanatory Notes to the Harmonized Commodity Description and Coding System (EN) to Section XI; and in the chapter notes and EN to chapter 60, HTSUSA;

(2) ladder tape is properly classified in heading 5911, HTSUSA, under the tariff provision for textile products and articles for technical uses; in support of this is Note 7(a)(b) to chapter 59, HTSUSA; HQ 953056, dated June 16, 1993; HQ 083454, dated October 19, 1989; and HQ 952938, dated August 4, 1993;

(3) ladder tape is an article created from yarn, and as such it should be classified in heading 5609, HTSUSA, in the provision for articles of yarn, not elsewhere specified or included; this is supported by HQ 087677, dated November 21, 1990;

(4) in the event Customs determines that this product is not an article or product of textile, but a fabric, it should be classified in subheading 6002.20.6000, HTSUSA, as an other knitted or crocheted fabric, of man-made fibers.

ISSUE:

Whether the subject merchandise is an article or product of textile, or a fabric?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI). GRI 1 requires that classification be determined according to the terms of the headings and any relative section or chapter notes. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRI will be applied, in the order of their appearance.

Proposed classification as an article or product of textile

The protestant claims that in HQ 555671, Customs held that ladder tape, produced in the United States and exported to Mexico for use in the production of venetian blinds, was classified under subheading 9802.00.80, HTSUSA, as a fabricated component exported in condition ready for assembly. The protestant then cites the definition of "fabricated component" as per the Customs Federal Regulations, 19 C.F.R. 10.12(d):

"fabricated component" means a manufactured article ready for assembly in the condition as exported except for operations incidental to the assembly.

Also referenced is 19 C.F.R. 10.14 (example 4), which states that uncut textile fabrics and other materials in basic shapes are specifically exempted from the definition of a fabricated component. Accordingly, protestant concludes that in classifying the ladder tape in subheading 9802.00.80, HTSUSA, Customs determined that ladder tape is an article and not a fabric.

Though HQ 555671 did address "fabricated components", the issue in that case was not the classification of ladder tape, per se, as either an article or fabric. The issue that was addressed in HQ 555671 was whether the wooden venetian blind as a whole, qualified for a partial duty exemption under heading 9802, HTSUSA. That ruling held that the numerous operations performed abroad (including the process of knotting the ladder tape at the top and bottom to secure the slats) to create the venetian blind were operations incidental to the assembly process.

Proposed classification as an other textile article for technical uses

Note 7 to chapter 59, HTSUSA, states:

Heading 5911 applies to the following goods, which do not fall in any other heading of section XI:

(a) Textile products in the piece, cut to length or simply cut to rectangular (including square) shape (other than those having the character of the products of headings 5908 to 5910), the following only:

(I) Textile fabrics, felt and felt-lined woven fabrics, coated, covered or laminated with rubber, leather or other material, of a kind used for card clothing, and similar fabrics of a kind used for other technical purposes;

(ii) Bolting cloth;

(iii) Straining cloth of a kind used in oil presses or the like, of textile material or of human hair;

(iv) Flat woven textile fabrics with multiple warp or weft, whether or not felted, impregnated or coated, of a kind used in machinery or for other technical purposes;

(v) Textile fabric reinforced with metal, of a kind used for technical purposes;

(vi) Cords, braids and the like, whether or not coated, impregnated or reinforced with metal, of a kind used in industry as packing or lubricating materials;

(b) Textile articles (other than those of headings 5908 to 5910) of a kind used for technical purposes (for example, textile fabrics and felts, endless or fitted with linking devices, of a kind used in papermaking or similar machines (for example, for pulp or asbestos-cement), gaskets, washers, polishing discs and other machinery parts).

The EN to heading 5911, HTSUSA state:

The textile products and articles of this heading present particular characteristics which identify them as being for use in various types of machinery, apparatus, equipment or instruments or as tools or parts of tools.

The heading includes, in particular, those textile articles which are excluded from other headings and directed to heading 59.11 by any specific provision of the Nomenclature...

Reference was made to HQ 953506 and HQ 083454, in support of the claim that the ladder tape qualifies under the technical use provision of heading 5911, HTSUSA. Though the protestant is correct in stating that in HQ 953506 it was explained that Note 7(b) to chapter 59, HTSUSA, enlarges the scope of this heading to include textile articles used for technical purposes, the protestant is incorrect in equating the subject ladder tape with the filter material that was at issue in that ruling. The filter material in HQ 953506 was classified in heading 5911, HTSUSA, based on its technical use, i.e., to separate solids from liquids for use in water treatment and water purification processes. The water treatment and purification processes are
the ultimate apparatuses for which the filter material is designated, and which renders the filter material "technical". Similarly in HQ 083454, the textile fibers at issue were easily identifiable as parts of machinery, i.e., photocopiers. There was no doubt as to their technical use.

It is stated that HQ 952938, wherein Customs held that imported rolls of fabric that were used in the production of batteries were classified in heading 5911, HTSUSA, is an example of how Customs has broadly interpreted what constitutes "machinery" and "apparatus". In the protestant's opinion, it follows that a venetian blind is an apparatus as it possesses mechanical components for the lifting and tilting of the blinds, serving the specific function of regulating the amount of light entering a room. HQ 952938 specifically discussed how the imported rolls of laminated nonwoven material were cut into numerous narrower rolls and then cut to length and inserted into "C" and "D" batteries. These pieces of material specifically serve to separate the cathode from the anode in alkaline-electrolyte electrochemical batteries. There is no question that the laminated material was designed for the batteries for the particular technical use of separating the substances that chemically react to produce the batteries' power. Venetian blinds, in our opinion, do not serve an inherent technical purpose.

With reference to the argument that the ladder tape is an article created from yarn, Note 7 (b) to the EN to Section XI states:

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, table cloths, scarf squares, blankets);

In HQ 956965, dated December 13, 1994, addressing the classification of billiard table fabric, and HQ 954822, dated December 22, 1994, addressing the classification of hollow fiber membranes, Customs was confronted with a similar issue, i.e., whether the goods in question were classifiable as material or as parts of the article into which they were intended to be incorporated. As was stated in HQ 956965:

... No matter how dedicated to a particular use a material is, it does not have the essential character of a finished article (and remains mere material) if the dimensions of the article to be made from that material are not fixed and certain.

Relying on the EN to Section XI to Note 7(b), HQ 956965 and HQ 954822 clarify that compliance with Note 7(b) requires compliance with a two pronged test before a claim can be made that merchandise, per se, qualifies as a finished article. In essence, what is required is a. 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 b. set dimensions.

The subject ladder tape is imported in rolls without any lines of demarcation. The protestant states that the reason for this is that size specifications can vary greatly from manufacturer to manufacturer and thus the length of the ladder tape will be determined by the length of the venetian blind. This being the case, one of the two factors required by Note 7(b) is not met. There is a lack of dimensions which are fixed with certainty. For this merchandise to be in fact, finished, it must first be cut into specified lengths. At the time of importation this is yet to be determined. It follows that the subject merchandise is not an article as envisioned by Note 7(b) to Section XI.

The remaining headings into which this merchandise can be classified are heading 5609, HTSUSA, in the provision for articles of yarn, or heading 6002, HTSUSA, in the provision for other knitted or crocheted fabrics. As the subject material is made directly from yarn into its finished form on a warp knitting machine, and presented in rolls (i.e., in the piece), it is a knitted fabric as specifically outlined by the terms of heading 6002, HTSUSA. Furthermore, Additional U.S. Note 2 to chapter 60, HTSUSA states:

For the purposes of this chapter, the term "open-work fabrics" means fabrics with stable open meshes, whether or not containing inwrought designs.

The submitted sample meets the definition of an open work fabric as outlined in Additional U.S. Note 2 to chapter 60, HTSUSA. It consists of stable open meshes, i.e., large open areas created by the knitting process which cannot be changed in shape.

HOLDING:

The subject ladder tape was correctly classified in subheading 6002.20.1000, HTSUSA, which provides for other knitted or crocheted fabrics: other, of a width not exceeding 30 cm: open-work fabrics, warp knit. The applicable rate of duty is 15.8 percent ad valorem and the quota category is 229.

The protest should be denied in full and a copy of this ruling should be appended to the CF 19 Notice of Action to satisfy the notice requirement of section 174.30(a), Customs Regulations.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the
decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director

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