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HQ 958674




December 12, 1996
CLA-2 RR:TC:TE 958674 CAB

CATEGORY: CLASSIFICATION

Edward Ackerman, Esquire
Coopers & Lybrand, L.L.P.
1301 Avenue of the Americas
New York, NY 10019-6013

RE: Classification of a weaving beam with yarn; Heading 5609; Chapters, 52,54,55, HTSUSA; Eligibility of certain beams designated as Instruments of International Traffic (IIT's)

Dear Mr. Ackerman:

This is response to your request for a tariff classification for certain merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) on behalf of Beckaert Textiles USA, Inc. Initially you requested a country of origin determination for the subject goods, however you have since withdrawn the country of origin request.

FACTS:

The subject merchandise is various types of yarn put up on beams. A beam is a large cylinder on which a number of yarns are wound in preparation for weaving. You describe the merchandise at issue as a blank weaving beam which consists of metal tubes approximately 8.6 feet long and each beam weighs approximately 100kg. Yarns that are wound on a beam (also known as a "warp beam" or a "weaving beam") are parallel to each other, and are aligned so that they are ready to feed into a weaving machine where they will become the warp yarns, (yarns that run lengthwise) in a woven fabric. You state that the weaving beams are used exclusively in the Bekaert production process and are bought and sold and are known in the textile industry as "weaving beams". You also state that the subject merchandise is not suitable for any other use except as a Bekaert weaving beam which is used to make mattress ticking. Finally, you state that the weaving beam is a holder which contains yarns of either man-made fibers or cotton and is repeatedly used in international traffic.

ISSUE:

I. Whether the weaving beams are classifiable as articles of yarn under Heading 5609, HTSUSA, or as various types of yarn in Chapters 52, 54, and 55, HTSUSA?

II. Whether the weaving beams may be treated as instruments of international traffic within the meaning of 19 USC 1322(a) and section 10.41a, Customs Regulations?

LAW AND ANALYSIS:

TARIFF CLASSIFICATION

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI's taken in order.

The issue is whether these yarns put up on beams should be classified as articles of yarn under Heading 5609, HTSUSA, or whether these yarns should be classified as yarn under Chapters 52, 54, or 55, HTSUSA, depending on the specific type of yarn.

Heading 5609, HTSUSA, is the provision for articles of yarn, strip or the like of heading 5404 or 5405, twine, cordage, rope or cables, not elsewhere specified or included. The Explanatory Notes to the Harmonized Commodity Description and Coding System (EN), although not legally binding, are the official interpretation of the nomenclature at the international level. The EN to Heading 5609, HTSUSA, provides the following:

This heading covers articles of the yarns of Chapters 50 to 55, articles of strip or the like of heading 54.04 or 54.05, and also articles of twine, cordage, rope or cables of heading 56.07, other than those covered by a more specific heading in the
Nomenclature.

It includes yarns, cordage, rope, etc., cut to length and looped at one or both ends, or fitted with tags, rings, hooks, etc., (e.g., shoe laces, clothes lines, towing ropes), ships' fenders, unloading cushions, rope ladders, lading slings, dish "cloths" made of a bundle of yarns folded in two and bound together at the folded end, etc.

You state that in Belgium yarn is wound off bobbins by a warping machine onto warping beams. The beams are put into autoclaves and are bleached, dyed, and rinsed. After warp beam processing, the yarns are sized. You further state:

The merchandise in question is an intermediate article known in the industry as a weaving beam. It is after the processing in Belgium, that the product is discernible as an individual, intermediate article due to the significant advancement which occurs during the Bekaert process. Moreover...the yarns become dedicated to one very specific use. Thus, the weaving beams are much more than mere materials; indeed, these specialty weaving beams imported into the United States have been so far advanced beyond the stage of mere
materials (i.e., yarn) as to be dedicated to and commercially fit only for a single use-mattress ticking. Accordingly, the weaving beams are intermediate products classifiable under heading 5609 of the HTS...

You also provide definitions for weaving beams from several different lexicographic sources. These definitions include:

1. Calloway Textile Dictionary (Callaway Mills-La Grange, GA, First Edition-1947)

Weaver's Beam - See Loom Beam
Loom Beam - a beam for holding warp yarn. In weaving, it is located at the back of the loom and from it the ends slowly unwind. Usually there is one beam to a loom, but sometimes there may be two or more.

2. The Modern Textile and Apparel Dictionary (Textile Book Service, Fourth Edition- 1973)

Loom Beam - a beam to hold warp yarn. In weaving, it is located at the back of the loom and from it the ends slowly unwind.

3. Annual Book of ASTM Standards, Volume 07.01 (D123 Standard Terminology Relating to Textiles defines the more generic term "beam" as follows:

Beam - a large spool containing many ends of yarn wound parallel, and used for such purposes as weaving or warp knitting.

You contend that the subject weaving beam is properly classifiable under Heading 5609, HTSUSA, as articles of yarn. Heading 5609, specifically provides for twine, cordage, rope, or cables, not provided for elsewhere in the tariff. The EN provide further exemplars that are properly classifiable under Heading 5609, HTSUSA. These exemplars include shoe laces, clothes lines, towing ropes), ships' fenders, unloading cushions, rope ladders, lading slings, and dish cloths. In Van Dale Industries v. United States, Slip. Op. 94-54, (April 1, 1994), the court discussed ejusdem generis, the rule for statutory construction. The court noted:

One rule of statutory construction is ejusdem generis, which means "of a kind, class, or nature." Black's Law Dictionary 464 (5th ed. 1979). This rule applies "whenever a doubt arises as to whether a given article not specifically named in the statute is to be placed in a class of which some of the individual subjects are named." [United States v. Damrak Trading Co., Inc., 43 CCPA 77,79, C.A.D. 611 (1956).] Under ejusdem generis, where particular words of description are followed by general terms, the latter will be regarded as referring to things of a like class with those particularly described. Id. In other words, ejusdem generis requires that merchandise possess the particular characteristics or
purposes that unite the specified exemplars in order to be classified under the general terms. See, Nissho-Iwasi Am. Corp v. United States, 10 CIT 154, 157, 641 F. Supp. 808, 810 (1986)(citations omitted).

To apply ejusdem generis, Customs must determine whether the subject weaving beam contains the shared characteristics of the articles enumerated eo nomine in Heading 5609, HTSUSA. All of the named articles in Heading 5609, HTSUSA, are made up articles of various types that require no additional processing to accomplish their intended purpose. The subject weaving beam, on the other hand, is comprised of yarns put up on beams which require further processing in order to result in a made up article. As you state, "the merchandise in question is an intermediate article", and Heading 5609, HTSUSA, provides for finished made up articles and not "intermediate articles". Thus, the subject weaving beam does not contain the shared characteristics of the named articles. Consequently, the weaving beam is not ejusdem generis with the eo nomine articles in Heading 5609, HTSUSA, and is not classifiable under that heading.

Customs is of the opinion that the subject weaving beam has the dual purpose of acting as a vessel or holder utilized in the transport of yarn and as a weaving beam designed to be used with certain textile weaving looms. However, with or without the beam, the yarns wound on it do not lose their identity as "yarn". In essence, you have a beam repeatedly used as a holder or container and yarn. As the yarn has not lost its identity as yarn, it warrants a separate classification. Consequently, the various yarns wound around the subject weaving beams are classifiable under Chapters 52, 54, 55, HTSUSA, depending on the specific type of yarn.

INSTRUMENTS OF INTERNATIONAL TRAFFIC

Section 322(a), Tariff Act of 1930, as amended (19 USC 1322(a)), provides that "vehicles and other instruments of international traffic, of any class specified by the Secretary of treasury, shall be excepted from the application of the customs laws to such extent and subject to such terms and conditions as may be prescribed in regulations or instructions of the Secretary of the Treasury...."

The Customs Regulations issued under the authority of Section 322(a) are in Sections 10.41 and 10.41a (19 CFR 10.41 and 10.41a). Paragraph (a)(1) of Section 10.41a designates as Instruments of International Traffic (IIT) lift vans, cargo vans, shipping tanks and certain other named articles and states that other articles may be designated as IIT by the Commissioner of Customs in a decision to be published in the weekly Customs Bulletin. Once designated as IIT's, these items may be released without entry or the payment of duty, subject to the provisions of 10.41a.

To qualify as an "instrument of international traffic" within the meaning of 19 USC 1322(a) and the regulation promulgated pursuant thereto (19 CFR 10.41a et. seq.), an article must be used as a container or holder. The article must be substantial, suitable for and capable of repeated use, and used in significant numbers in international traffic. See, subheading 9803.00.50, HTSUSA, and former Headnote 6(b)(ii), Tariff Schedules of the United States (TSUS), as well as Headquarters Ruling Letters (HQs) 104766, dated August 22, 1988, 109665, dated September 12, 1988, and 109702, dated September 30, 1988.

The concept of reuse contemplated above is for commercial shipping or transportation purposes, and not incidental or fugitive uses. See, Holly Stores, Inc. v. United States, 697 F.2d 1387 (Fed. Cir., 1982). In Holly Stores, the court determined that "reuse" in the context of former General Headnote 6(b)(ii) "has been consistently interpreted to mean practical, commercial reuse, not incidental reuse...." Subsequent Customs Rulings on this matter have determined that single use is not sufficient, reuse means more than twice. See, HQ 105567 and HQ 108658.

In HQ 112274, dated December 14, 1992, when faced with whether certain beams used to hold yarn, in addition to harness frames, reeds, and heddles, were used for the transportation of yarn could be treated as instruments of international traffic, Customs concluded the following:

We find that the beams, harness frames, reeds and heddles under consideration are capable of being used as a holder, that they are substantial, suitable for and capable of repeated use, and that they will be used in significant numbers in international traffic. We further find that the beams, harness frames, reeds and heddles under consideration are similar to holders designed to hold two or more pounds of yarn or thread, made of wood, base metal, or plastic or a combination thereof, known as spools, bobbins, cops, and pins, used for the transportation of yarn and thread which were designated as instruments of international traffic in Treasury Decision 56563.

Accordingly, pursuant to 19 USC 1322(a) and Section 10.41a, Customs Regulations, and the cited HQs, the subject weaving beam, with or without the yarn, may be treated as an instrument of international traffic.

The designation of a container or holder as an IIT becomes effective only when used as such upon its arrival in this country in foreign trade, either empty or with merchandise. If the holder or container is brought into the country by a party other than the one who is using it as an IIT, it is subject to entry as imported merchandise. The principal on the IIT bond is the party who is using the holder or container as an IIT.

HOLDING:

The subject weaving beam with or without the yarn qualifies for treatment as an instrument of international traffic and may be released under the procedures set forth in section 10.41a, Customs Regulations.

The various types of yarns you describe in your submission are classifiable in Chapters 52, 54, and 55, HTSUSA. The exact subheadings cannot be determined in this ruling as you did not provide Customs with samples or specific descriptions. It is important to note that if the subject weaving beam is imported with yarn wound around it, the yarn is subject to duty and quota restraints.
.

Sincerely,

John Durant, Director
Tariff Classification Appeals

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