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

Commercial Rulings Division