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HQ 953995


December 29, 1993

CLA-2 CO:R:C:T 953995 ch

CATEGORY: CLASSIFICATION

TARIFF NO.: 4602.90.0000

Cynthia C. Crawford, Esquire
Galland, Kharasch, Morse & Garfinkle, P.C. Canal Square
1054 Thirty-First Street, N.W.
Washington, D.C. 20007-4492

RE: Classification of a woven polypropylene sack; article of plaiting or textile materials; not an article of plastic; Chapter 39, Note 2(ij); Section XI, Note 1(g); plastic strips with an apparent width of over and under 5 mm; essential character; article of plaiting materials.

Dear Ms. Crawford:

This is in response to your letter of March 5, 1993, requesting tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) for a woven polypropylene sack. A sample was provided to our office for examination. Please reference your client, Bajaj Plastics Limited.

FACTS:

The subject merchandise is a sack made of woven polypropylene strips. It is manufactured from polypropylene sheets which are cut into strips measuring 5.5 mm in actual width. These strips are then woven into material sheets. During the weaving process some of the weft and warp strips are reduced in width due to crumpling and folding. The woven material is coated on one side with polypropylene plastic, and then is cut to size to produce a sack of specific dimensions. The sack's overlap is welded by an extrusion method by plasticizing polypropylene. It has an open mouth and is sewn at the bottom with polypropylene fibrillated thread. This article is used to package plastic resins and other materials.

You have submitted the following information concerning the composition of the sample at the time of importation:

Total Strips Weight Strips Weight
Strips Above Grams Below Grams
5mm 5mm
Warp 213 182 24 31 4

Weft 140 84 17 56 11

Lamination 27

Vertical 2
Welding

Fibrillated 1
Thread

ISSUE:

Whether the polypropylene sack is classifiable under heading 3923, HTSUSA, as bags or sacks of plastics for the conveyance or packing of goods; under heading 4602, HTSUSA, as an article made from woven plaiting materials in sheet form provided for in heading 4601, HTSUSA; or under heading 6305, HTSUSA, which provides for textile sacks or bags of a kind used for the packing of goods?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification is determined first in accordance with the terms of the headings of the tariff and any relative section or chapter notes. Where goods cannot be classified on the basis of GRI 1, the remaining GRI will be applied in order.

Subheading 6305.31, HTSUSA, provides for polypropylene sacks and bags, of a kind used for the packing of goods. The instant sack is composed of polypropylene and is used for the packing of resins and other materials. Hence, it appears that this article is prima facie classifiable under heading 6305.

However, this heading is located in Section XI, HTSUSA. Section XI, Note 1(g) provides that Section XI does not encompass:

Monofilament of which any cross-sectional dimension exceeds 1 mm or strip or the like (for example, artificial straw), of an apparent width exceeding 5 mm, of plastics (chapter 39), or plaits or fabrics or other basketware or wickerwork of such monofilament or strip (chapter 46). (Emphasis added).

The subject merchandise contains strips which possess apparent widths both above and below 5 mm. The strips with apparent widths below 5 mm are classifiable in Section XI. (See Section XI, Chapter 54). However, pursuant to Section XI, note 1(g), the strips with apparent widths above 5 mm are not classifiable within Section XI. Therefore, the instant article is not entirely composed of materials which are classifiable within Section XI, HTSUSA.

Section IX, Chapter 46, Note 1, HTSUSA, states in pertinent part:

In this Chapter the expression "plaiting materials" means materials in a state or form suitable for plaiting, interlacing or similar processes; it includes...monofilament and strips and the like of plastics and strips of paper, but not strips of...monofilament and strips and the like of Chapter 54. (Emphasis added).

The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System constitute the official interpretation of the nomenclature at the international level. While not legally binding, they do represent the considered views of classification experts of the Harmonized System Committee. It has therefore been the practice of the Customs Service to follow, whenever possible, the terms of the EN when interpreting the HTSUSA.

The General EN to Chapter 46, at page 651, provide:

In addition to articles of loofah, this Chapter covers semi-manufactured products (heading 46.01) and certain articles (46.01 and 46.02) made by interlacing, weaving or by similar methods of assembling unspun materials, particularly:

(3) Monofilament and strip and the like of plastics of Chapter 39 (but not monofilament of which no cross- sectional dimension exceeds 1 mm nor strip or the like of an apparent width not exceeding 5 mm, of man-made textile materials, of Chapter 54. (Emphasis in original).

Chapter 46, Note 1, when read in conjunction with the General EN to Chapter 46 cited above, makes it clear that Section IX, Chapter 46 encompasses strips of plastics with apparent widths above 5 mm, suitable for plaiting or interlacing. To the extent that the polypropylene sack contains woven plastic strips with apparent widths above 5 mm, it is described by Chapter 46. More specifically, this item is an article of heading 4602. See Headquarters Ruling Letter (HRL) 952202, December 3, 1992 (polypropylene bag composed of plastic strips with apparent widths above 5 mm is an article of heading 4602).

As the sack is composed of plastic, we must also consider whether it may also be classified pursuant to Section VII, Chapter 39, HTSUSA, which encompasses plastics and articles thereof. Chapter 39, Note 2(ij), specifies that Chapter 39 does not cover articles of Chapter 46. In addition, Chapter 39, Note 2(l) provides that Chapter 39 does not cover goods of Section XI. As the sack is an article composed entirely of materials found in Section XI and Chapter 46, Chapter 39 is inapplicable.

GRI 2(b) provides that:

Any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances. Any reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material or substance. The classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.

The sack is composed of a combination of two materials; i.e. materials of Section IX, Chapter 46 and Section XI, Chapter 54, HTSUSA. Therefore, classification of this article shall be determined pursuant to the principles of GRI 3.

GRI 3(a) states that:

The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.

As noted above, the instant article is classifiable under two headings of the tariff schedule based upon its material composition. Pursuant to GRI 3(a), these headings are to be regarded as equally specific in relation to one another. Hence, we cannot classify this item on the basis of GRI 3(a).

GRI 3(b) reads as follows:

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), shall be classified as if they consisted of the material or components which gives them their essential character, insofar as this criterion is applicable.

The EN to GRI 3(b), at page 4, state in pertinent part that:

The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

In this case, the sack is composed of two materials. The strips above 5 mm in apparent width are classified as plaiting materials of Section IX, Chapter 46, and comprise 85.7 percent of the warp and 60.7 percent of the weft of the sack. On the other hand, the strips which measure below 5 mm in apparent width are classified as textile materials of Section XI, Chapter 54. These strips comprise 14.3 percent of the warp and 39.3 percent of the weft of the finished article. Based on these figures, the surface area of the sack is predominantly of plaiting materials. In addition, the total number of plaiting strips (266) exceeds the total number of textile strips (87). Finally, the weight of the plaiting materials (41 grams) is significantly greater than the weight of the textile strips (15 grams). For these reasons, we conclude that the essential character of the polypropylene sack is imparted by the plaiting strips. Accordingly, the sack shall be classified as an article made from plaiting materials.

HOLDING:

The subject merchandise is classifiable under subheading 4602.90.0000, HTSUSA, which provides for basketwork, wickerwork and other articles, made directly to shape from plaiting materials or made up from articles of heading 4601; articles of loofah: other. The applicable rate of duty is 5.3 percent ad valorem.

Sincerely,

John Durant, Director

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