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HQ 087654


March 12, 1991

CLA-2 CO:R:C:T 087654 CRS

CATEGORY: CLASSIFICATION

TARIFF NO.: 5407.52.2060

Assistant District Director
Commercial Operations Division
U.S. Customs Service
Patrick V. McNamara Building
477 Michigan Avenue
Detroit, MI 48266

RE: Protest and application for further review. Defective tire cord fabric that is not worn out, soiled or torn not classifiable as rags; defective fabrics or fabrics with faults that are not worn out or torn are classifiable in the headings appropriate to new fabrics. Protest denied.

Dear Sir:

This is in reply to your memorandum dated May 14, 1990, to the Protest Reviewer, Chicago Region, concerning a Protest and Application for Further Review (Protest No. 3801-0-001436) filed by John V. Carr & Son, Inc., on behalf of Victor Gelb, Inc. A sample was provided.

FACTS:

The article in question is a dyed open weave fabric made from 100 percent 3-ply woven polyester filament yarn in the warp and 100 percent 1-ply woven viscose rayon fibers in the weft. The total weight of the fabric is approximately 402 g/m of which polyester represents 99 percent and rayon 1 percent. Laboratory analysis has determined that the yarns are not high tenacity yarns as defined by Note 6, Section XI, HTSUSA.

Protestant states that the fabric is defective and thus is not fit for its intended purpose, the manufacture of pneumatic tires. In order to be suitable for making tires, the fabric must meet certain specifications. The instant fabric is defective for various reasons, such as out-of-spec treatment, fabric defects, tensile strength. On this basis protestant maintains that the fabric should be classified as rags of heading 6310, HTSUSA. The fabric is manufactured in Canada. Once imported, the fabric is used in the manufacture of mechanical rubber products such as V- belts and truck mats.

ISSUE:

Whether the tire cord fabric in question is classifiable in heading 6310, HTSUSA.

LAW AND ANALYSIS:

Articles are classified under the HTSUSA in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of articles is determined according to the terms of the headings and any relative section or chapter notes and, provided the headings or notes do not otherwise require, according to the remaining GRIs taken in order.

Heading 6310, HTSUSA, provides for, inter alia, used or new rags. The Explanatory Notes (EN), while not legally binding, constitute the official interpretation of the Harmonized System at the international level. EN 63.10 provides in pertinent part:

(1) Rags of textile fabrics (including knitted or crocheted fabrics, felt or nonwovens). Rags may consist of articles of furnishing or clothing or of other articles so worn out, soiled or torn as to be beyond cleaning or repair, or of new small cuttings (e.g., dressmakers' or tailors' snippings).

To fall in the heading, these products must be worn, dirty or torn, or in small pieces. They are generally fit only for the recovery (e.g. by pulling) of the fibres ....

All other textile waste and scrap, however, is excluded from this heading.

The heading also excludes fabrics showing faults in weaving, dyeing, etc., but which do not fulfill the conditions mentioned above. These fabrics are classified in the headings appropriate to new fabrics.

The fabric in question is unused and although defective and not suitable for the manufacture of tires, is not worn out, soiled or torn. EN 63.10 states that fabrics showing faults which are not worn out, soiled or torn are classifiable as new fabrics. Consequently, the instant fabric is not classifiable as rags of heading 6310.

Heading 5902, HTSUSA, provides for tire cord fabric of high tenacity yarn of nylon or other polyamides, polyesters or viscose
rayon. However, the instant fabric is not made from high tenacity yarns and therefore is not classifiable in heading 5902.

Heading 5407, HTSUSA, provides for woven fabrics of synthetic filament yarns. Note 1, Chapter 54, HTSUSA, defines the term "synthetic" when used in relation to fibers to mean fibers obtained by the polymerization of organic monomers such as polyester. The fabric in question is made from polyester yarns in the warp and rayon yarns in the filling. Note 2(A), Section XI, HTSUSA, states that goods classifiable in Chapters 50 to 55 that consist of a mixture of two or more textile materials are classifiable as if consisting wholly of that one textile material that predominates by weight over each other single textile material. However, the rayon yarns constitute only 1 percent of the total weight and have no function other than to hold the polyester warp yarns in place. Consequently, it is Customs' view the rayon yarns are de minimis. As a result, the tire cord fabric is classifiable as if it consisted entirely of polyester.

The tire cord fabric is wholly manufactured in Canada and pursuant to General Note 3(c)(vii)(B), HTSUSA, is eligible for treatment as goods originating in the territory of Canada.

HOLDING:

The protest should be denied. A copy of this ruling should be sent to the protestant together with the Form 19 Notice of Action.

The instant tire cord fabric is classifiable in subheading 5407.52.2060, HTSUSA, under the provision for woven fabrics of synthetic filament yarn, including fabrics obtained from materials of heading 5404; other woven fabrics, containing 85 percent or more by weight of textured polyester filaments; dyed; other; weighing more than 170 g/m. As goods originating in the territory of Canada the fabric is dutiable at the rate of 11.9 percent ad valorem.

The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available, we suggest that you check, close to the time of shipment, the Status Report on Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service, which is available for inspection at your local Customs office.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,


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