HQ 0083740 - Tariff Classification of Windbreaks - United States International Trade Commision Rulings

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HQ 083740

May 4, 1989

CLA-2 CO:R:C:G 083740 PR

CATEGORY: CLASSIFICATION

TARIFF NO.: 3926.90.9050

Mr. Frank Brennan
Mudge, Rose, Guthrie, Alexander & Ferdon
2121 K Street, N.W.
Washington, D.C. 20037

RE: Tariff Classification of Windbreaks

Dear Mr. Brennan:

This ruling is in response to your request, on behalf of Fabrimetrics, Inc., concerning the tariff status of certain windbreaks.

FACTS:

The subject windbreaks are imported in widths of from 10 to 24 feet and in 100 foot lengths. They are made from woven polyethylene textile strips, laminated on both sides with a milky white plastic film which is stated to be 0.03 mm thick and which can be seen with the naked eye. The two long edges have been folded over a split film cord and heat sealed in place. This is stated to be for the purpose of reinforcement and providing added strength. The merchandise is said to be sold to contractors for use as protection from the weather during the construction of multistory buildings. A sample windbreak, without the corded edges, was submitted with a previous inquiry.

ISSUE:

The issues presented are whether the windbreaks are classifiable as plastics or textile goods, and whether they are made up articles or materials.

LAW AND ANALYSIS:

Section XI of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) contains Chapter 59, where Heading 5903 is located. That heading provides for textile fabrics impregnated, coated, covered, or laminated with plastics. Note 1(h) to Section XI provides that Section XI does not cover woven fabrics impregnated, coated, covered, or laminated with plastics, or articles thereof, of Chapter 39 (HTSUSA).

However, Note 2(l) to Chapter 39, which contains the provisions under which most plastics and plastic articles are classifiable, provides that Chapter 39 does not cover goods of Section XI.

The chapter notes are essential to determine the applicability of those two notes. Note 2 to Chapter 59, HTSUSA, states that Heading 5903 applies to:

(a) Textile fabrics, impregnated, coated, covered or laminated with plastics, whatever the weight per square meter and whatever the nature of the plastic material (compact or cellular), other than:

(3) Products in which the textile fabric is either completely embedded in plastics or entirely coated or covered on both sides with such material, provided that such coating or covering can be seen with the naked eye with no account being taken of any resulting change of color (chapter 39);

Note 2(a)(3) does not specifically include fabrics that have been laminated on both surfaces with plastics. However, the note does include fabrics "covered" on both surfaces with plastics. Under the Tariff Schedules of the United States Annotated (TSUSA), the predecessor of the HTSUSA, coatings and laminations were traditionally treated differently. But there was no concept of "covered" fabrics under the TSUSA. Although a coating can be less than a covering, both coatings and laminations are usually forms of coverings. The use of the word "covering" in the notes to Chapters 56 and 59 evidences an express intention to treat laminations and coatings alike.

Accordingly, pursuant to Note 2, Chapter 59, textile fabrics, such as here involved, laminated on both surfaces with plastics that can be seen with the naked eye, otherwise than by a change in color, are not provided for in Section XI. They are goods of Chapter 39 by operation of Note 1(h), Section XI.

In Chapter 39, Heading 3921 provides for plates, sheets, film, film, foil, and strips, of plastics, reinforced, laminated, supported, or combined with other materials; and Heading 3926 provides for other articles of plastics. Note 10, Chapter 39, states, in essence, that Heading 3921 applies to goods whether or not printed or otherwise surface worked, and whether or not cut into rectangles, but not further worked, even if they have become articles ready for use.

In order to ascertain whether folding the longitudinal edges over a cord and heat sealing the fold in place constitutes "further working", we have consulted the Harmonized Commodity Description and Coding System, Explanatory Notes, which are the official interpretation of the HTSUSA at the international level (the 4 and 6 digit headings). The Explanatory Notes, at page 573, state:

Plates, sheets, etc., whether or not surface-worked (including squares and other rectangles cut therefrom), with ground edges, drilled, milled, hemmed, twisted, framed or otherwise worked or cut into shapes other than rectangular (including square) are generally classified as articles of headings 39.18, 39.19 or 39.22 to 39.26.

We have been unable to find any further elaboration on the intended meaning and scope of the term "further worked". Specifically, does the hemming have to be necessary, and do all four sides have to be hemmed. None of the rulings cited in the incoming submission bear on this matter. The only pertinent precedential ruling, of which we are aware, is HRL 083013, dated March 20, 1989. In that ruling, Customs held that irrigation dam material that had been hemmed along one lengthwise edge was "further worked" because the hemming was done for a specific utilitarian purpose and it was necessary for the intended used of the merchandise.

In the present circumstance, folding the lengthwise edges over a cord and heat sealing those edges in place constitutes as much of a hemming operation as that done in HRL 083013. The distinction between HRL 083013 and the instant situation is that in HRL 083013, the merchandise was not useable without the additional working. This merchandise has been imported and used for a period of time without the corded edges and the possibility exists that the corded edges are a subterfuge to obtain a more favorable tariff classification.

As evidenced by HLR 083013, Customs believes that it is unreasonable to require hemming on a specified number of edges. Customs also believes that a producer has a right to change its product in order to obtain more favorable tariff treatment, or to improve its product. In either event, it is the resulting effect produced on the merchandise that governs the classification, not the producer's reason for that change.

In this instance, it appears that the corded edges do, in fact, provide reinforcement and additional strength to the imported merchandise, and that is Customs' sole consideration. In our view, the functional hemming on the imported windbreaks constitutes "further working" and precludes their classification as material in Heading 3921. The fact that the merchandise can be cut up and used for other purposes is not a consideration unless there is evidence establishing the imported merchandise is not primarily used as windbreaks in its imported condition.

HOLDING:

The subject merchandise, imported in 100 foot lengths with man-made fiber cords inserted into heat-sealed hems which run the full length of both lengthwise edges, is classifiable under the provision for other articles of plastics, in Subheading 3926.90.9050, HTSUSA, with duty, as a product of Korea, at the rate of 5.3 percent ad valorem.

Sincerely,

John Durant, Director

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