August 24, 2005 CBP Bulletin Notices on Fabric/Garments w/Activated Carbon Layer and Grant of "Lever-Rule" Protection

CBP states that any party who has received a contrary ruling or decision on the merchandise that is subject to the proposed rulings, or any party involved with a substantially identical transaction, should advise CBP by September 23, 2005, the date that written comments on the proposed rulings are due. Furthermore, CBP states that an importer's failure to advise CBP of such rulings, decisions, or substantially identical transactions may raise issues of reasonable care on the part of the importer or its agent for importations subsequent to the effective date of the final decision in this notice.

CBP also states that its proposed revocation notice covers any rulings on the subject merchandise that may exist but have not been specifically identified.

Proposed Revocation of Two Classification Rulings

Certain three-layer fabric and garments with activated carbon particles in one layer. According to CBP, the items at issue in these proposed revocations are ScentBlocker fabric as well as clothing tops and bottoms made from ScentBlocker fabric. CBP explains this fabric is laminated and consists of an outer polyester knit fabric and an inner non-woven fabric impregnated with carbon for use in manufacturing scent eliminating hunting clothes. Specifically, the fabric's outer layer is printed in a camouflage pattern and is made of a weft knit interlock construction and is composed wholly of polyester. The middle layer is composed of activated carbon particles embedded in a nonwoven polyester construction. The inner layer has a weft knit construction and is composed wholly of polyester.

CBP is proposing to issue HQ 967321 in order to revoke NY F83890 and reclassify the ScentBlocker fabric under HTS 6006.34.0040 (cat 222), which provides for other knitted or crocheted fabrics: of synthetic fibers: Printed: of double knit or interlock construction: of polyester, rather than under HTS 6815.10.0000, which provides for nonelectrical articles of graphite or other carbon.

CBP is also proposing to issue HQ 967320 in order to revoke NY G86317 and reclassify the ScentBlocker garments under HTS 6105.20.2010 (cat 638), which provides for other men's knitted or crocheted shirts of man-made fibers and HTS 6103.43.1520 (cat 647), which provides for other men's knitted or crocheted trousers and breeches, of synthetic fibers rather than under HTS 6815.10.0000.

With regard to the classification of the fabric, CBP determined that the outer layer of this fabric provides the essential character under General Rule of Interpretation 3(b). CBP made this conclusion as the outer layer's knit fabric is more substantial than any of the other layers, and also because this layer forms the surface of the fabric and its camouflage printing adds to the fabric's marketing appeal and functionality of the garments that will be made from the fabric.

With regard to the classification of the garments, CBP finds that HTS 6105.20.2010 and 6103.43.1520 specifically provide for the garments.

CBP also rejected an assertion that the garments are classified under HTS 9507.90.8000, which provide for (among other things) other articles of hunting equipment, pursuant to the Court of Appeals for the Federal Circuit (CAFC) ruling in Bauer Nike Hockey USA, Inc. v. U.S. CBP finds that these garments are not articles that fall within the class of merchandise particularly described in HTS 9507 as the exemplars to that heading are articles that are requisite for sport, instruments directly used to hunt, attract, or capture fish, butterflies, etc. Comparatively, these garments are not used to hunt animals and while they mask human scent, they in no way attract animals.

(In Bauer, the CAFC found that because certain pants were specifically designed and intended for use only while playing ice hockey, they were classifiable as ice hockey equipment. See ITT's Online Archives or 03/23/05 news, 05032320, for BP summary of the Bauer ruling.)

proposed: 6006.34.0040 (fabric; cat 222), 10%; 6105.20.2010 (shirt, cat 638), 32%; 6103.43.1520 (trousers, cat 647), 28.2%.

current: 6815.10.0000, duty-free.

Grant of "Lever-Rule" Protection for Certain Fax Toner Cartridges

CBP states that it has granted "Lever-Rule" protection to Canon USA, Inc. for certain gray market fax toner cartridges bearing the "FX" trademark (U.S. Patent & Trademark Office Registration No. 1,721,245; CBP Recordation No. TMK 04-00120).

CBP states that it has determined that these gray market products differ physically and materially from the fax toner cartridges authorized for sale in the U.S. in a number of respects including in the type of documents provided and the language used in the documents, as well as the identification codes used.

According to CBP, importation of the subject "FX" fax toner cartridges is restricted unless the labeling requirements of 19 CFR 133.23(b) are satisfied. These labeling requirements state, among other things, that such merchandise or its packaging must bear a conspicuous and legible label designed to remain on the product until the first point of sale to a retail consumer in the U.S. stating that: "This product is not a product authorized by the U.S. trademark owner for importation and is physically and materially different from the authorized product."

(See ITT's Online Archives or 06/15/04 news, 04061560, for BP summary of CBP's receipt of this application for lever rule protection.)

August 24, 2005 CBP Bulletin (Vol. 39, No. 35) available at http://www.cbp.gov/xp/cgov/toolbox/legal/bulletins_decisions/bulletins_2005/vol39_08242005_no35/