HQ 0955258 - Application for further review of Protest No. 1801-93- 100040 under 19 U.S.C., section 1514(c)(2); classification of fibrillated polypropylene strip; man- made fiber; 10,000 decitex; not twine, cordage, ropes and cables. - United States International Trade Commision Rulings

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HQ 955258

January 27, 1994

CLA-2 CO:R:C:T 955258 ch

CATEGORY: CLASSIFICATION

TARIFF NO.: 5404.90.0000

District Director
U.S. Customs Service
4430 East Adamo Drive
Suite 301
Tampa, Florida 33605

RE: Application for further review of Protest No. 1801-93- 100040 under 19 U.S.C., section 1514(c)(2); classification of fibrillated polypropylene strip; man- made fiber; 10,000 decitex; not twine, cordage, ropes and cables.

Dear Sir:

This is a decision on application for further review of a protest timely filed by James R. Cahill on behalf of Cahill Customs Consulting, Inc. We have considered the protest and our decision follows.

FACTS:

The submitted sample is a single twisted fibrillated 100 percent polypropylene strip imported from Guatemala. The protestant states that the strip measures approximately 9,000 decitex and has a twist of 36 turns per meter. It is approximately 3 mm in apparent width (i.e. diameter).

The strip is manufactured by melting polypropylene pellets and extruding it into a flat sheet, which is stretched and wound on bobbins. The sheet is then twisted into its final form.

The merchandise was liquidated under subheading 5402.51.0000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for synthetic filament yarn, with a twist exceeding 50 turns/meter, of nylon or other polyamides. The claimed classification is subheading 5607.49.1000, which provides for twine, cordage, ropes and cables, of polyethylene or polypropylene, of wide nonfibrillated strip.

ISSUE:

What is the proper tariff classification for the fibrillated polypropylene strip?

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.

Section XI, Chapter 54, HTSUSA, provides for man-made filaments. Within Chapter 54, Heading 5404 provides for synthetic monofilament of 67 decitex or more and of which no cross-sectional dimension exceeds 1 mm. It also provides for strip and the like of synthetic textile materials of an apparent width not exceeding 5 mm. The fact that strip of Heading 5404 appears in the Chapter providing for man-made filaments suggests that it may be regarded as a type of filament. This interpretation is supported by Heading 5407, which encompasses woven fabrics of synthetic filament. Heading 5407 specifies that it includes woven fabrics obtained from materials of heading 5404. One such material is synthetic strip. Therefore, we conclude that strip of Heading 5404 is a filament for tariff purposes.

The Explanatory Note (EN) to Heading 5404, at page 754, reads in pertinent part as follows:

(1) Synthetic monofilament. These are filaments extruded as single filaments. They are classified here only if they measure 67 decitex or more and do not exceed 1 mm in any cross-sectional dimension. Monofilaments of this heading may be of any cross- sectional configuration and may be obtained not only by extrusion but by lamination or fusion.

(2) Strip and the like, of synthetic textile materials. The strips of this heading are flat, of a width not exceeding 5 mm, either produced as such by extrusion or cut from wider strips or from sheets.

Provided their apparent width (i.e., in the folded, flattened, compressed or twisted state) does not exceed 5 mm, this heading also covers:

(i) Strip folded along the length.

(ii) Flattened tubes, whether or not folded along the length.

(iii) Strip, and articles referred to in (i) and (ii) above, compressed or twisted. (Emphasis added).

This passage suggests that monofilament of Heading 5404 may generally be of any cross-sectional shape. However, strip of Heading 5404 must be flat and must be of an apparent width of 5 mm or less. Moreover, strip may be produced by extrusion. The fact that strip has been twisted does not affect its classification in Heading 5404. In this instance, the merchandise satisfies the specified criteria for strip. It has been produced by extrusion and is less than 5 mm in apparent width. Before twisting the product is flat. Accordingly, it is classifiable as strip of Heading 5404.

The strip was liquidated in Heading 5402, HTSUSA, which provides for synthetic filament yarn, not put up for retail sale, including synthetic monofilament of less than 67 decitex. The EN to Heading 5402 states in part that:

This heading covers synthetic filament yarn (other than sewing thread). It includes:

(1) Monofilament (monofil) of less than 67 decitex.

(2) Multifilament obtained by grouping together a number of monofilaments (varying from two filaments to several hundred) generally as they emerge from the spinnerets.

Thus, Heading 5402 encompasses both monofilament and multifilament. As noted above, strip of Heading 5404 is a type of filament. In this case, the strip is not multifilament as it has not been grouped together with other strip. Although it may be viewed as a monofilament, it is more than 67 decitex and is therefore not within the scope of Heading 5402. In addition, the provision for strip within Heading 5404 describes the merchandise more specifically than does Heading 5402, which provides generally for synthetic filament yarn. For these reasons, we find that the instant product is not classifiable in Heading 5402.

Protestant claims that the subject merchandise is properly classified in Chapter 56, Heading 5607, HTSUSA, which describes twine, cordage, ropes and cables. Section XI, Note 3(A), provides in pertinent part that:

For the purposes of this section, and subject to the exception in paragraph (B) below, yarns (single, multiple (folded) or cabled) of the following descriptions are to be treated as "twine, cordage, ropes and cables":

(b) Of man-made fibers (including yarn of two or more monofilaments of chapter 54), measuring more than 10,000 decitex.

The legal note states that man-made fibers measuring more than 10,000 decitex are to be treated as twine, cordage, ropes and cables of Heading 5607, HTSUSA. In addition, the General Explanatory Note (EN) to section XI, part I(B)(2), at page 708, contains a table which pertains to the classification of yarns, twine, cordage, rope and cables of textile material. This table also indicates that man-made fibers measuring more than 10,000 decitex are classified as twine, cordage, ropes and cables of heading 5607, HTSUSA. Therefore, if the instant strip is a man- made fiber it will be classified in Heading 5607 only if it measures more than 10,000 decitex.

Chapter 54, Note 1, HTSUSA, reads in pertinent part as follows:

Throughout the tariff schedule, the term "man-made fibers" means staple fibers and filaments of organic polymers produced by manufacturing processes, either:

(a) By polymerization of organic monomers, such as polyamides, polyesters, polyurethanes or polyvinyl derivatives;

The terms "synthetic" and "artificial", used in relation to fibers, mean: synthetic: fibers as defined at (a). (Emphasis added).

In addition, the General EN to Chapter 54, at page 749, states in part that:

Under Note 1 to Chapter 54, the term "man-made fibres," when used in Chapters 54 and 55 or elsewhere in the Nomenclature, means filaments or staple fibres composed of organic polymers produced by manufacturing processes, either by:

(1) Polymerisation (see the General Explanatory Note to Chapter 39) of organic monomers (synthetic fibres). (Emphasis added).

Taken together, the legal and explanatory notes indicate that for tariff purposes man-made fibers include synthetic fibers and filaments. Furthermore, the General Explanatory Note (EN) to Chapter 54, at page 749, provides that a polypropylene filament is a type of synthetic filament. Therefore, polypropylene filaments are man-made fibers.

In this instance, the submitted sample is polypropylene strip measuring less than 10,000 decitex. As strip of Heading 5404 is a type of filament, the instant strip is a man-made fiber. Pursuant to Section XI, Note 3(A), and the General EN to Section XI, man-made fibers measuring less than 10,000 decitex are not classifiable as twine, cordage, ropes and cables of Heading 5607. As the instant strip measures less than 10,000 decitex, it cannot be classified within Heading 5607.

Protestant resists this finding on several grounds. First, our attention is directed to the General EN to Section XI, which states, at pages 705 and 707, that Chapters 50 to 55, HTSUSA, are reserved generally for raw materials such as yarns. Protestant contends the instant strip is not a raw material and therefore cannot be classified in Chapter 54. However, the General EN to Section XI, at page 707, states that yarns include filaments of Headings 5402 through 5405. As we have previously established that strip of Heading 5404 is a type of filament, it is a yarn for tariff purposes.

Second, protestant observes that generally Chapters 50 to 55 exclude products that are "made up," as that term is defined in Note 7 to Section XI, HTSUSA. Specifically, Section XI, Note 8 states:

Chapters 50 to 55 and, except where the context otherwise requires, chapters 56 to 60, do not apply to goods made up within the meaning of note 7 above. Chapters 50 to 55 do not apply to goods of chapters 56 to 59.

Protestant argues that the strip is made up pursuant to Section XI, Note 7(b), which states that "made up" includes products produced in a finished state, ready for use. As the strip will not be further processed after importation, protestant reasons that it is excluded from Chapter 54.

Note 7(b) to Section XI sets forth examples of products which are "made up" in the sense that they are ready for use: dusters, towels, tablecloths, scarf squares, blankets. These exemplars are lengths of fabric suitable for direct use as articles. In this case, the strip is not imported as a fabric suitable for direct use. Rather, it is in the form of a yarn. For this reason, we conclude that the strip is not "made up" under the terms of Section XI, Note 7(b).

Third, protestant refers to the table found in the General EN to Section XI, at page 708. As previously noted, this table indicates that only man-made fibers measuring over 10,000 decitex are classifiable in Heading 5607. Protestant urges us to disregard the information contained in the table. However, the 10,000 decitex standard for man-made fibers is codified as Note 3(A)(b), Section XI. Therefore, it is binding legal authority.

Finally, protestant has submitted several of our prior rulings, as well as Treasury Decision 85-183, which indicate that fibrillated polypropylene strip has been classified as twine or cordage in the past. We recognize that polypropylene strip may be classified in Heading 5607, HTSUSA. However, pursuant to the foregoing legal and explanatory notes, man-made fibers must measure over 10,000 decitex in order to qualify for such treatment.

HOLDING:

Based on the foregoing discussion, the subject merchandise is classifiable in Subheading 5404.90.0000, HTSUSA, which provides for synthetic monofilament of 67 decitex or more and of which no cross-sectional dimension exceeds 1 mm; strip and the like (for example, artificial straw) of synthetic textile materials of an apparent width not exceeding 5 mm: other. The applicable rate of duty for such goods which are the product of Guatemala is Free under the Generalized System of Preferences.

Since re-classification of the merchandise as indicated above will result in the same rate of duty as claimed you are instructed to allow the protest in full.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Lexis, Freedom of Information Act and other public access channels.

Sincerely,

John A. Durant, Director

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