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HQ 955866




May 25, 1994

CLA-2:CO:R:C:G 955866 PR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6307.90.9986

District Director of Customs
605 W. Fourth Avenue, Room 205
Anchorage, AK 99501

RE: Request for Further Review of Protest 3126-93-100001, Concerning the Classification of Inflatable Oil Containment Booms

Dear Sir:

This ruling is on the protest that was filed against your decision in the liquidation on March 4, 1992, and concerns the classification of inflatable oil containment booms.

FACTS:

The imported goods are inflatable oil containment booms manufactured in the United Kingdom. They are designed to control oil spills and prevent the oil from contaminating beach and shallow tidal water areas.

This office does not have a detailed description of the merchandise. Technical material submitted with the protest shows that the merchandise is tubular-shaped with metal fittings on the ends. An invoice description is as follows:

BOOM, CONTAINMENT, OIL, INFLATABLE, 50' LENGTH, 14" HEIGHT (8" FLOAT, 6" SKIRT), NEOPRENE/NYLON WEAVE/NEOPRENE FABRIC (29 OZ/SQ YD), 5/16" GALV BALLAST CHAIN, END CONNECTORS-"QUICK CONNECT" ASTM F962-86, PER ALYESKA DRAWING #A-1-SK-P4876-C1 W/ONE EACH END (3/8" STAINLESS STEEL SPRING LOADED SELF-LOCKING PIN)

A specification sheet submitted with the protest describes a "Mini Shore Guardian" as 1) 25 feet long, 2) international orange in color, 3) made of a "PVC-22 ounces/square yard" fabric, 4) having two high integrity automatic valves, and 5) having quick- connectors with 3/8th inch stainless steel spring loaded self- locking cross pins. -2-

Another invoice describes the "High Integrity 350 Sprint Boom" as "manufactured in 118 X 50 ft. sections", with a total length of 5,900 feet.

A sample of the material comprising the booms was submitted by the importer and examined by a Customs laboratory. It was determined to be black sheeting material consisting of outer layers of polychloroprene rubber (72 percent by weight) and a middle woven fabric layer of man-made nylon fibers (28 percent by weight). The neoprene was noncellular and the sample weighed 981 grams per square meter.

ISSUE:

The merchandise was liquidated under a basket provision for other made up textile articles (not more specifically provided for), in subheading 6307.90.9986, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), with duty at the rate of 7 percent ad valorem. It is the importer's position that since the containment booms are inflatable articles, they should be classified under the provision for other inflatable articles of vulcanized rubber (other than hard rubber), in subheading 4016.95.0000, HTSUSA, with duty at the rate of 4.2 percent ad valorem.

LAW AND ANALYSIS:

Imported goods are classifiable according to the General Rules of Interpretation (GRI's) of the HTSUSA. GRI 1 provides that for legal purposes, classification shall be determined according to the terms of the headings in the tariff and according to any pertinent section or chapter notes.

The claimed classification, subheading 4016.95.0000, is located in Chapter 40, HTSUSA. Note 2(a) to that chapter states, that goods of Section XI (textiles and textile articles) are not classifiable in Chapter 40. Subheading 6307.90.9986 is located in Chapter 63, which is part of Section XI. Accordingly, pursuant to GRI 1, if, under the rules for classifying goods in Section XI, the containment booms are classifiable in that section, they are not classifiable in Chapter 40.

Note one to Chapter 63 states, "Subchapter 1 applies only to made up articles, of any textile fabric." In order to apply that note, the meaning of the phrases "made up" and "textile fabric" must be determined.

MADE UP

Section XI, Note 7, provides, in pertinent part, that for the purposes of section XI, the expression "made up" means:

(a) Cut otherwise than into squares or rectangles; (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 assembled in layers, whether or not padded); or

The inflatable oil containment booms fit within the purview of Note 7 and qualify, therefore, as "made up".

TEXTILE FABRIC

There is no specific definition in the HTSUSA of "textile fabric." Note 4 of Chapter 59, states, in pertinent part, that for the purposes of classification in heading 5906, the expression "rubberized textile fabrics" means:

(a) Textile fabrics impregnated, coated, covered or laminated with rubber:
(i) Weighing not more than 1,500 g/mý; or (ii) Weighing more than 1,500 g/mý and containing more than 50 percent by weight of textile material;

Since the subject merchandise is made of material which weighs less than 1,500 g/mý and which is comprised of a textile fabric that has been coated, covered or laminated with rubber, it is a "rubberized textile fabric." As such, an article comprised of that material is an article of a "textile fabric" within the purview of Note 1 to Chapter 63 and, therefore, the containment booms are not classifiable in Chapter 40, HTSUSA. As a result, the containment booms are classifiable in subheading 6307.90.9986, the only classification in Section XI which describes that merchandise.

In support of the above, The Harmonized Commodity Description and Coding System Explanatory Notes (EN), which are the official international interpretation of the Harmonized Tariff System, provides persuasive evidence that an article of rubberized fabric which qualifies as being "made up" is intended to be classified in Chapter 63. The Explanatory Notes for heading 5906, at page 819, state that the heading does not include, among other things, rubberized fabrics which satisfy the Note 7 requirements for being "made up" and references Chapters 61 to 63. Since, in order to be classifiable in Chapter 63, except for such articles as embroidery sets, worn clothing, and rags, and article must be of "any textile fabric", it follows that a rubberized textile fabric classifiable in heading 5906 qualifies as a textile fabric for purposes of Chapter 63.

HOLDING:

The subject containment booms are classifiable under the provision for other made up textile articles in subheading 6307.90.9986, HTSUSA.

The protest should be denied and copy of this ruling should be attached to the Customs Form 19 furnished to the protestant.

Sincerely,

John Durant, Director

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