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HQ 086435


July 13, 1990

CLA-2 CO:R:C:G 086435 HP

CATEGORY: CLASSIFICATION

TARIFF NO.: 5911.90.0000; 9905.59.10

Ms. Ann Williams
A.N. Derringer, Inc.
30 West Service Road
Champlain, NY 12919-9703

RE: Coated yarn for braided valve stem packing material of man-made fiber and glass is textile article for technical uses with essential character imparted by man-made fibers. Cordage; GRI 2(a); complete; finished; incomplete; unfinished

Dear Ms. Williams:

This is in reply to your letter of January 29, 1990, requesting reconsideration of NYRL 833728 of December 7, 1988. Please reference your client Garlock du Canada Limite.

Pursuant to section 177.2(b)(7), Customs
Regulations (19 C.F.R. 177(b)(7)), your request for confidentiality of all cost specifications in your ruling request is granted.

FACTS:

The merchandise at issue, Style Nos. M455-1410, M455-1100, and 08455-1406, consists of yarn to be used to manufacture braided stem packing for pumps. The yarns are composed of:

M455-1410 M455-1100 08455-1406

Item % by Item % by Item % by
Weight Weight Weight

11.6 60 37 50 37 20
ETDE ETDE ETDE contin contin contin uous uous uous glass glass glass filame filame filame nt nt nt

Acryli 24 Acryli 30 75 10 c c ECDE fiber fiber contin uous glass filame nt

Rayon 16 Rayon 20 37 20
Viscos fiber ECDE e contin uous glass filame nt

Acryli 50 c non- contin uous filame nt

The textile cordage is manufactured as packaging for pumps and valves. The textile components of the cordage are mixed with various other materials (i.e., Teflon ) to generate chemical abrasion and/or heat resistance.

In NYRL 833728, we classified this merchandise under heading 7019, HTSUSA, as glass fibers and articles thereof.

ISSUE:

Whether the instant merchandise is classifiable as textile products or as articles of glass fiber?

LAW AND ANALYSIS:

HRL 083830 of May 31, 1989, HRL 085417 of October 31, 1989, HRL 085813 of January 10, 1990, and HRL 086497 of March 29, 1990, among others, addressed to your company, concerned similar-type goods manufactured by Garlock du Canada Limite, to be used for the same purposes as the instant merchandise. In those rulings, we held that packing yarn composed of various components was classifiable under heading 5911, HTSUSA, which provides for textile products and articles, for technical uses, specified in Note 7 to Chapter 59, HTSUSA. Note 7 provides, inter alia, that heading 5911 applies to textile cords, braids and the like, of a kind used as packing or lubricating materials, whether in the piece or cut to length.

By using the locution "cords, braids and the like," the merchandise covered by that portion of Note 7 is not required to be twine, rope or braid; it must only be something that resembles, in appearance and use, cord and braid. A physical examination of the instant merchandise clearly shows that its outward appearance is that of cords; indeed, you have stated that the sample will be used as cords in the construction of braided packing material.

It has been argued that since the sample will be used as cords in the construction of braided packing material, rather than as braided packing material, classification in heading 5911 is precluded. This classification of raw materials as finished products was analogized to classifying 70 denier nylon yarns as taffeta or fabric used to make a blouse as a blouse. This reasoning is misplaced.

The General Rules of Interpretation (GRIs) to the HTSUSA govern the classification of goods in the tariff schedule. GRI 1 states, in pertinent part:

... classification shall be determined according to the terms of the headings and any relative section or chapter notes ...

Goods which cannot be classified in accordance with GRI 1 are to be classified in accordance with subsequent GRIs, taken in order. GRI 2(a) provides:

Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article.

It is clear in the instant matter that the yarn, as entered, has the essential character of completed packing material. After importation, the yarn is braided. You have demonstrated that this yarn is worthless except for use in construction of braided packing materials. In addition, current industry practice recognizes this type of yarn as dedicated for use in the construction of braided packing materials. Therefore, under the GRI 2(a) analysis narrated above, the instant yarn is classifiable under heading 5911 as finished braided packing materials.

In determining whether the merchandise is a textile product, and therefore covered by heading 5911, HRLs 083830 and 085417, supra, looked to the General Rules of Interpretation to the HTSUSA. The instant merchandise is composed of more than one type of material. GRI 3 states, in pertinent part:

When by application of Rule 2(b) [goods of more than one material or substance] or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:

(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a) [which requires that goods be classified, if possible, under the more specific of the competing provisions], shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

The factors which determine essential character of an article will vary from case to case. It may be the nature of the materials or the components, its bulk, quantity, weight, value, or the role a material plays in relation to the use of the goods. In general, essential character has been construed to mean the attribute which strongly marks or serves to distinguish what an article is; that which is indispensable to the structure or condition of an article.

In HRLs 083830, 085417, and 085813, supra, the man- made fibers comprised, by weight and value, only a small portion of the merchandise. We also stated that, notwithstanding this small percentage, it is these fibers which provide the sealing capacity for the packing material (the primary reason for the material's usage). The glass and Teflon components were found to merely enhance, rather than create, the properties of the packing material. Accordingly, the essential character of the samples was found to be imparted by the man-made fibers.

With respect to the instant merchandise, the man- made fibers still provide the sealing capacity for the packing material. While the man-made fibers may now, in one case, be present in a smaller proportion than, e.g., HRL 085813, the costs of those fibers still outweigh by far the costs of the lubricating chemicals. It is our opinion, therefore, that the essential character of the yarn is imparted by man-made fibers.

HOLDING:

As a result of the foregoing, the instant merchandise is classified under subheading 5911.90.0000, HTSUSA, as textile products and articles, for technical uses, specified in note 7 to this chapter, other. Articles which meet the definition of "goods originating in the territory of Canada" (see General Note 3(c)(vii)(B), HTSUSA) are subject to reduced rates of duty under the United States-Canada Free Trade Agreement Implementation Act of 1988. If the merchandise constitutes "goods originating in the territory of Canada," the applicable rate of duty is normally 6 percent ad valorem (otherwise, the general rate of duty is 7.5 percent ad valorem.)

U.S. Note 1 to Subchapter V of Chapter 99, HTSUSA, however, states:

Unless the context otherwise requires, goods originating in the territory of
Canada described in the provisions of this subchapter, for which a rate of duty followed by the symbol "(CA)" is herein provided, are subject to duty at the rate set forth in lieu of the rate provided therefor in chapters 1 through
98. No other preferential tariff treatment provided under general note
3(c) to the tariff schedule shall be afforded under the provisions of this subchapter. Unless otherwise provided, the provisions and notes of this subchapter are effective as to such goods, under general note 3(c)(vii) to the tariff schedule, through the close of December 31, 1998, on which date this subchapter shall be deleted from the tariff schedule and shall cease to apply to any goods entered after that date.

Subheading 9905.59.10, HTSUSA, provides a Free rate of duty to goods originating in the territory of Canada and meeting the following description:

Packing yarns with cores of glass fibers, whether or not incorporating a metal wire, covered with a textile wrapper (provided for in subheading
5911.90.00).

The instant merchandise meets this description. The applicable rate of duty, therefore, is Free.

This notice to you should be considered a modification of NYRL 833728 of December 7, 1988, as to the merchandise described as packing yarn, under 19 C.F.R. 177.9(d)(1) (1989). It is not to be applied retroactively to NYRL 833728 (19 C.F.R. 177.9(d)(2) (1989)) and will not, therefore, affect the transaction for the importation of your merchandise under that ruling. However, for the purposes of future transactions in merchandise of this type, NYRL 833728 will not be valid precedent. We recognize that pending transactions may be adversely affected by this modification, in that current contracts for importations arriving at a port subsequent to the release of HRL 086435 will be classified under the new ruling. If such a situation arises, you may, at your discretion, notify this office and apply for relief from the binding effects of the new ruling as may be dictated by the circumstances.

Sincerely,

John Durant, Director

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