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HQ 084348


AUGUST 3, 1989

CLA-2 CO:R:C:G 084348 PR

CATEGORY: CLASSIFICATION

TARIFF NO.: 5407.20.0000; 6305.31.0020

Mrs. Alice Wagner
C.J. Tower Inc.
128 Dearborn Street
Buffalo, New York 14202

RE: Classification of Polyethylene Tubes and Sleeves

Dear Mrs. Wagner:

This ruling is in response to your letter of April 5, 1989, on behalf of Fabrene Inc., in Canada, concerning the tariff status of polyethylene tubes and sleeves.

FACTS:

Samples were submitted with your inquiry and were examined by our National Import Specialist (NIS) in New York. However, they were apparently misdirected in transit to this office. Accordingly, this ruling is based on the description of the merchandise as reported to this office by our NIS.

Three samples accompanied the ruling request: (1) The first, a tubing material which will be imported on rolls 1094 yards long and 54 to 61 inches wide, is made from two panels of natural coated woven polyethylene strip fabric brought together and overlapped, with the coated sides to the inside. The overlap is indicated in a submitted diagram to be folded over and the two panels joined by heating the edges to a temperature that melts the coating but not the fabric; (2) a sleeve, open at both ends and about 56 inches long, cut from the tubing represented by sample (1); and (3) a sleeve, similar to sample (2), with one end sewn closed. The plastic coating on the woven fabric from which the samples are constructed is not visible to the naked eye. The finished articles will be bags used for the transportation and storage of merchandise such as fiberglass batting.

ISSUE:

The issues presented are (1) what are the requirements for classification under Heading 6307, which provides for other made up articles; and (2) at what stage does an unfinished bag exist for tariff purposes.
LAW AND ANALYSIS:

Heading 6307, HTSUSA, is suggested for the classification of samples (1) and (2). That heading reads "Other made up articles, including dress patterns". The wording of the heading requires that merchandise, to be classifiable thereunder, (1) not be classifiable elsewhere; (2) be "made up" within the terms of Section XI, Note 7, HTSUSA; and (3) be an article (as opposed to being piece goods).

The first and third criteria for classification under Heading 6307, HTSUSA, must be dealt with as one issue since if any of the merchandise is determined to be an article, that merchandise cannot be classified as fabric in Chapter 54, HTSUSA, and vice versa.

The second criterion for classification is governed by Note 7 to Section XI, HTSUSA, which states, in pertinent part:

7. For the purposes of this Section, the expression "made up" means:

(c) Hemmed or with rolled edges, or with a knotted fringe at any of the edges, but excluding fabrics, the cut edges of which have been prevented from unravelling by whipping or by other simple means;

Since the merchandise has been hemmed along its two lengthwise edges and that hemming is necessary to the intended use of the article when complete, merchandise as represented by the three samples qualifies under Note 7(c) as "made up".

In regard to the first and third criteria for classification in Heading 6307, it is noted that Note 7 defines the term "made up". It does not define "made up articles". Thedrafters could have avoided the problem of whether material has become an article by wording Heading 6307 "Other made up goods"--"goods" being a broader and more general term than "articles" in tariff parlance.

The Harmonized Commodity Description and Coding System, Explanatory Notes, are the official interpretation of the HTSUSA at the international level (the 4 and 6 digit headings). In regard to Heading 6307, it states:

This heading covers made up articles of any textile material which are not included more specifically in any other headings of Section XI or elsewhere in the Nomenclature. (at page 867; underscoring added)

It then lists 25 different finished goods which are classifiable under Heading 6307, and, following that enumeration, states:

Besides the finished articles listed above, this heading covers articles in the length, made up within the meaning of Note 7 to Section XI, provided they are not included in other headings of Section XI. (at page 868; underscoring added)

Following the above language, sample (1) is not classifiable under Heading 6307 because it is in material form, not an article, and because, as material, it included under Heading 5407, which provides for woven fabrics of synthetic yarn or strip. This interpretation is supported by exemplar 21 in the illustration of finished goods classifiable under Heading 6207 on page 868 of the Explanatory Notes, which lists:

Cheese-cloths, cut into rectangles * * * . (Cheese- cloths woven in the piece prepared for cutting to size or shape, but requiring further fabrication before use, are to be classified as piece goods.)

Note 2 to Chapter 59, HTSUSA, contains the criteria for the classification under the provisions for fabrics impregnated, coated, covered, or laminated with plastics. One requirement is that the plastics can be seen with the naked eye with no account being taken of any resulting change of color. Since the plastics application on the fabrics comprising the instant samples does not meet that criterion, those fabrics are not classifiable under a heading for fabrics impregnated, coated, covered, or laminated with plastics.

In our view, the essential character of all three samples is imparted by the woven textile strips. Accordingly, sample (1), as described above, is classifiable under a heading for woven fabrics. Sample (2), however, has been cut to a specific size for a specific use, with only minor processing (the stitching closed of one open end) needed to have a finished article. Its identity is fixed with certainty. As such, it has the essential character of the finished bag and is, pursuant to GRI 2(a), classifiable as an unfinished bag or sack, under the same provision as sample (3).

HOLDING:

Sample (1) is classifiable under the provision for woven fabrics of synthetic strip not exceeding 5 mm in apparent width, in Subheading 5407.20.0000, HTSUSA, with duty, as a product of Canada, at the rate of 15.3 percent ad valorem. Samples (2) and (3) are classifiable under the provision for sacks and bags "of a kind used for the packing of goods", of polyethylene or polypropylene textile strip, in Subheading 6305.31.0020, with duty, as a product of Canada, at the rate of 8.5 percent ad valorem.

Sincerely,

John Durant, Director

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