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HQ 956317


August 9, 1994

CLA-2 CO:R:C:T 956317 BC

CATEGORY: CLASSIFICATION

TARIFF NO.: 5902.90.0000

Al Scopinich
2303 N. U.S. Hwy. 1
Ft. Pierce, FL 34946

RE: Revocation of NYRL 893323; classification of tire cord fabric used in the manufacture of rubber hoses; Additional U.S. Rule of Interpretation 1(a)

Dear Mr. Scopinich:

This responds to your letter of January 10, 1994, wherein you requested that Headquarters reconsider New York Ruling Letter (NYRL) 893323. We have reviewed the matter and decided, as set forth below, that NYRL 893323 should be revoked.

FACTS:

In NYRL 893323, dated December 29, 1993, the merchandise at issue is described as follows:

The instant sample is a woven tire cord type fabric composed of rayon man-made fibers. The warp consists of numerous strong cords and a weft of fine yarns spaced about 3/4 of an inch apart to hold the warp in position. You further state that this fabric has been dipped with latex. From the color of the material, the dipping solution appears to be of a resorcinol formaldehyde latex (RFL) type, which is a rubber. This coating protects the fibers and improves the adhesion of the rubber in the construction of hoses.

As indicated, the fabric subject of NYRL 893323, and the instant ruling, is used in the manufacture of industrial rubber hoses. The New York ruling classified the fabric in subheading 5906.99.2500, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for rubberized textile fabrics (other than those of heading 5902), other than knitted or crocheted, of man-made fibers, not over 70% by weight of rubber or plastics. This decision was based on the view that heading 5902, HTSUSA, pertaining explicitly to tire cord fabric, is an actual use tariff provision. Since the fabric at issue is not used in the manufacture of tires, it cannot be classified under that heading; thus, its classification under heading 5906, HTSUSA. You contend that the fabric should be classified under heading 5902, HTSUSA.

Pursuant to section 625, Tariff Act of 1930 (19 U.S.C. 1625), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993) (hereinafter, section 625), notice of the proposed revocation of NYRL 893323 was published on June 22, 1994, in the Customs Bulletin, Volume 28, Number 25.

ISSUE:

Is heading 5902, HTSUSA, an "actual use" tariff provision or a "use" tariff provision?

LAW AND ANALYSIS:

Additional U.S. Rule of Interpretation 1(a) provides the following:

[A] tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use.

"Principal use" is "that which exceeds any other single use of the article." (U.S. International Trade Commission Publication 1400 (1983), Conversion of the TSUSA into the Nomenclature Structure of the Harmonized System.) A good classifiable under a use tariff provision is so classified regardless of how it is used after importation. In contrast, additional U.S. Rule of Interpretation 1(b) provides the following:

[A] tariff classification controlled by the actual use to which the imported goods are to be put in the United States is satisfied only if such use is intended at the time of importation, the goods are so used and proof thereof is furnished within 3 years after the date the goods are entered.

This means that a good entered under an actual use tariff provision must be used in the manner specified in the provision. If it is not so used, it is not entitled to classification in that provision. (See 19 CFR 10.31-10.39.)

Applying the above to the instant case, if heading 5902, HTSUSA, is determined to be an actual use provision, then the fabric at issue cannot be classified in that heading. If the heading is determined to be a use provision, the fabric at issue can be classified in the heading if it is of the class or kind of fabric principally used as "tire cord fabric." Its after entry use in the manufacture of hoses would be irrelevant.

The principle of actual use is considered only when the tariff provision is controlled by use. This control is usually indicated by the language of the provision, such as "for use in," "for use as," or "to be used for," although there are exceptions to this general rule. (See R. Sturm, Customs Law & Administration, 53.3 (3d ed. 1984).) Heading 5902, HTSUSA, provides for the following:

5902 Tire cord fabric of high tenacity yarn of nylon or other polyamides, polyesters or viscose rayon:

5902.10 Of nylon or other polyamides . . .

5902.20 Of polyesters . . .

5902.90 Other . . .

Note that the language of heading 5902, HTSUSA, does not indicate that tire cord fabric is to be used in a specific application.

The Explanatory Notes (EN's) to the Harmonized Commodity Description and Coding System (HCDCS) state the following regarding heading 5902, HTSUSA (see HCDCS, Vol. 2, p. 815):

This heading covers tyre cord fabric, whether or not dipped or impregnated with rubber or plastics.

These fabrics are used in the manufacture of tyres and consist of a warp of parallel filament yarns held in place, at specific distances, by weft yarns. The warp always consists of high tenacity yarns of nylon or other polyamides, polyesters or viscose rayon, while the weft, widely-spaced and intended solely to hold the warp in place, may consist of other yarns. . . .

The heading does not cover other woven fabrics used in the manufacture of tyres nor fabrics of yarns which do not meet the specification of Note 6 to Section XI [pertaining to high tenacity yarns] . . . .

(The EN's assist us in the classification of merchandise. They constitute the official interpretation of the nomenclature at the international level. While not legally binding, they represent the considered views of classification experts of the Harmonized System Committee. It has been the practice of the Customs Service to follow, whenever possible, the terms of the EN's when interpreting the HTSUS. (See Treasury Decision (T.D.) 89-80, 23 Cust. Bull., p. 379.)

While the EN uses the phrase "are used in the manufacture of tyres," this language is not accorded the legal significance that would apply if it appeared in the tariff provision itself. Again, the EN's are not legally binding; the language of the tariff heading is legally binding. While the EN indicates that tire cord fabric is a very specific kind of article (as evidenced by the exclusion from the heading of "other woven fabrics used in the manufacture of tyres" and fabrics not meeting the specifications of Note 6, Section XI), it does not explicitly set forth that tire cord fabric cannot be used in other applications. It provides that tire cord fabric is used in the manufacture of tires, but does not set forth that it cannot be used in other ways, or that such use is disqualifying.

Based on the language of the heading, as well as on the language of the EN which persuades us that the scope of the heading was not intended to be limited to only those qualifying fabrics actually used in the manufacture of tires, we conclude that heading 5902, HTSUSA, is a use tariff provision. Thus, so long as a qualifying fabric is of the class or kind of fabric known as tire cord fabric and used principally in the manufacture of tires, it will be classifiable in the heading regardless of how it is used after entry. This conclusion is in accord with a previous Headquarters ruling that determined the heading to be a use provision: Headquarters Ruling Letter 083271, dated April 3, 1989.

Whether the fabric at issue meets the specifications for tire cord fabric is unknown. While you submitted a statement from the manufacturer that the merchandise at issue is "high tenacity fabric," the New York ruling (893323) stated that the fabric was not tested to determine if the requirements (pertaining to "high tenacity yarn") of Note 6 to Section XI, HTSUSA, were met. If in fact the fabric meets all specifications under the tariff and is a fabric of the class or kind used principally as tire cord fabric, it is classifiable in heading 5902, HTSUSA, despite its use in the manufacture of hoses. (Note HRL 087654, dated March 12, 1991, where we rejected classification of so-called tire cord fabric in heading 5902, HTSUSA, on the grounds that the fabric did not meet the specifications set forth in Note 6 to Section XI, HTSUSA.) Conversely, if the fabric fails to meet the tariff requirements, or is otherwise determined not to be of the requisite class or kind, classification under subheading 5906.99.2500, HTSUSA, (as in NYRL 893323) may be appropriate.

We recommend that you submit a copy of this ruling to the Area Director, New York Seaport, along with evidence showing that the fabric at issue meets the requirements of Note 6 to Section XI, HTSUSA. If deemed necessary by the director, a test shall be performed on the sample of merchandise submitted.

HOLDING:

Heading 5902, HTSUSA, is a use tariff provision, not an actual use tariff provision. Thus, fabrics of the class or kind known as "tire cord fabric" that are used principally in the manufacture of tires are classifiable under heading 5902, HTSUSA, provided they meet all requirements under the tariff. Accordingly, NYRL 893323 is hereby revoked.

In accordance with section 625, this ruling will become effective 60 days from its publication in the Customs Bulletin. Publication of rulings or decisions pursuant to section 625 does not constitute a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations (19 CFR 177.10(c)(1)).

Sincerely,

John Durant, Director

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