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HQ 959132




September 23, 1996
CLA-2 RR:TC:TE 959132 jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 5407.20.0000

Robert A. Calandra, Esq.
Sandler, Travis & Rosenberg, P.A.
505 Park Avenue
New York, NY 10022-1106

RE: Classification of a geotextile; Note 7 to Section XI; not made-up

Dear Mr. Calandra:

This is in response to your letter, dated February 23, 1996, on behalf of your client, Polybarq, C.A., requesting classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of a geotextile. A sample was submitted to this office for examination.

FACTS:

The submitted sample, a geotextile, is composed of 100 percent polypropylene strip which measures approximately two to three millimeters in diameter. It contains approximately 16 strips per inch in the warp and 12 strips per inch in the filling. You state this product will be manufactured in widths varying between 110 and 210 inches and will be imported in 100 to 1500 yard lengths. Every three to six feet close to the selvage, a punch will stamp a 270 degree hole with a diameter of approximately 3/4 inches into the fabric.

You state that the geotextiles may be used for sedimentation control, site drainage, soil reinforcement, roadway construction and repair, and erosion control. It is stated that the holes punched into the fabric function as unreinforced grommets and will enable users to secure the geotextile products to the ground, to other geotextile products, to thread a rope, or for other uses.

In your opinion the geotextiles are classified in heading 6307, HTSUS, as other made up textile articles. This is based on the belief that the merchandise is a made up article due to your view that:

1. the tucked-in selvage is considered a hem;

2. the merchandise is produced in the finished state;

3. the merchandise is further worked.

ISSUE:

Whether the subject merchandise is properly classified in heading 6307, HTSUS, as an other made up article or in heading 5407, HTSUS, as a woven fabric of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404, HTSUS?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes, taken in order. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI.

Heading 6307, HTSUS, provides for other made up articles. Note 7 to Section XI states that the expression "made up" means:

(a) Cut otherwise than into squares or rectangles;

(b) Produced in the finished state, ready for use (or merely needing separation by cutting dividing threads) without sewing or other working (for example, certain dusters, towels, tablecloths, scarf squares, blankets);

(c) Hemmed or with rolled edges, or with a knotted fringe at any of the edges, but excluding fabrics the cut edges of which have been prevented from unraveling by whipping or by other simple means;

You assert that as the tucked in selvage serves a dual purpose, that is, preventing the edges from unraveling and securing the edge of the geotextile, the subject merchandise should be considered a hem, as per Note 7(c). We disagree. Shuttleless looms have become very common in the industry; these looms routinely produce a tucked-in selvage as the fabric is being woven to prevent the unraveling of the fabric. As such, once the fabric comes off the loom, no additional operation is required to secure the selvage. It is our opinion that this exemplifies the "fabrics the cut edges of which have been prevented from unraveling by simple means", as excepted by Note

Additionally, it should be noted that even if we were to consider the tucked-in selvage akin to a hem, the tucked-in selvage would not feature what this office has consistently determined to be the requisite properties of a hem. It has been the position of this office, through a series of rulings, that for a piece good to be considered "made up", the hem must dedicate the fabric to a particular use. In Headquarters Ruling Letter (HQ) 083013, dated March 20, 1989, merchandise consisting of irrigation dam material, made up of woven man-made fiber strips, coated with 0.04 mm of orange polyethelene plastics which could be seen with the naked eye, and featuring a lengthwise edge folded over itself and hemmed to create an 8 inch pocket along the entire length of the fabric, was determined to meet the criteria for "made up". The rationale was based on the fact that the hemming along the entire length of the fabric served a utilitarian purpose, that is, it created a pocket which allowed the insertion of a 2 inch by 4 inch piece of wood to hold the dam in place. On the other hand, in HQ 084144, dated July 19, 1989, a nylon woven fabric used for the manufacture of umbrellas, imported in material lengths and hemmed to prevent unraveling, was determined not to be "made up". The rationale was based on the fact that the hem did not serve a utilitarian purpose and did not dedicate the fabric for a particular use. Similarly, in the case of the subject geotextile, the tucked-in selvage merely prevents the unraveling of the merchandise and does not otherwise dedicate the fabric to a particular use.

You also assert that, as per the definition of made up in Note 7(b), the geotextiles are produced in the finished state, ready for use, because after importation no further cutting or processing will take place. Furthermore, you state that the punching of holes along the length renders the geotextiles "further worked" as they are not simply cut out from larger pieces. You refer to HQ 083587, dated May 2, 1989, regarding the classification of liners used in tire manufacturing, as support for the claim that the subject merchandise qualifies as made-up. In HQ 083587, polyethylene liners in the size and shape of finished products as they came off the loom, but requiring two manufacturing processes, heat setting and heat sealing the edges to prevent fraying, were classified as made up articles. HQ 083587 can easily be distinguished from the subject merchandise. As you correctly noted, the liners which were the subject of HQ 083587 came off the loom in the size ready for use. We are not convinced that this is the case with the subject merchandise. Although you state that the subject merchandise is "produced in the finished state, ready for use", and that no further cutting or processing will occur after importation, no documentation was submitted to support this claim. This type of material, imported on rolls is generally cut to the appropriate size needed for use.

The Explanatory Notes to the Harmonized Commodity Description and Coding System to chapters 56-63, HTSUS, in defining made up articles, state, in pertinent part:

However, rectangular (including square) articles simply cut from larger pieces without other working and not incorporating fringes formed by cutting dividing threads are not regarded as "produced in the finished state" within the meaning of this Note.

It has been the opinion of this office that for merchandise to qualify as "further worked" the processing that is done on the merchandise must serve a functional purpose. In the merchandise that was the subject of HQ 083587, the material was not only undoubtedly produced in the finished state but was also further worked through heat setting and heat sealing to prevent fraying of the merchandise. You state that the holes which have been cut into the subject merchandise function as unreinforced grommets, enabling users to secure the geotextile product to the ground or to other geotextile products, or to thread a rope. We do not agree. Many processes are done on materials which do not qualify them as made up articles. For example, burnt out lace remains classified as material even though portions of the fabric are cut or burnt away. After a thorough examination of the holes punched into the subject merchandise, it is our belief that these holes are not functional. Although you refer to these holes as unreinforced grommets used to secure the merchandise to other geotextile merchandise or other fasteners, when we tugged at the holes slightly, they began to rip. It would thus appear to us that any other significant force applied to these holes, as would be the case with the uses contemplated for this merchandise, i.e., sedimentation control, site drainage, roadway construction and repair, etc., would tear this merchandise and defeat its intended purpose or use. As such, we cannot deduce any functional use for these holes. Accordingly, as this merchandise does not meet the requisite criteria for "made up", as per Note 7, the subject merchandise is excepted from classification as an other made up article in heading 6307, HTSUS.

Heading 5407, HTSUS, provides for woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404, HTSUS. The subject merchandise is properly classified in subheading 5407.20.0000, HTSUSA, which provides for, woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404: woven fabrics obtained from strip or the like.

HOLDING:

The subject merchandise is classified in subheading 5407.20.0000, which provides for, woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404: woven fabrics obtained from strip or the like. The applicable rate of duty is 13.6 percent ad valorem and the quota category is 620.

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 your client check, close to the time of shipment, the Status on Current Import Quotas (Restraint Levels) an issuance of the U.S. Customs Service, which is updated weekly and is available at the 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, your client should contact the local Customs office prior to importing the merchandise to determine the current applicability of any import restraints or requirements.

Sincerely,

John Durant, Director

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