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HQ 965347




May 21, 2002

CLA-2 RR:CR:TE 965347 ttd

CATEGORY: CLASSIFICATION

TARIFF NO: 5402.61.0000

Brenda E. Smith
Import Supervisor
Fritz Companies, Inc.
7001 Chatham Center Dr., Suite 100
Savannah, GA 31419

RE: Revocation of New York Ruling Letter H85147, dated August 30, 2001.

Dear Ms. Smith:

This letter is pursuant to Customs reconsideration of New York Ruling Letter (NY) H85147, dated August 30, 2001, filed on behalf of Lowes Companies, Inc., regarding classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of certain twisted nylon yarn on a spool. After review of NY H85147, Customs has determined that the classification of the twisted nylon yarn on a spool in subheading 5406.10.0090, HTSUSA, was incorrect. For the reasons that follow, this ruling revokes NY H85147.

Pursuant to section 625(c)(1) Tariff Act of 1930 (19 U.S.C. 1625(c)(1)) as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-82, 107 Stat. 2057, 2186), notice of the proposed revocation of NY H85147 was published on April 17, 2002, in the Customs Bulletin, Volume 36, Number 16. As explained in the notice, the period within which to submit comments on this proposal was until May 17, 2002. No comments were received in response to this notice.

FACTS:

The merchandise at issue is a three-ply, twisted, nylon yarn on a spool (#18) described as having a diameter of .06 inches and linear weight of 10 grams per 10 meters, with a decitex of 1,000. A visual examination of the item reveals that the yarn is composed of three individual strands of synthetic multifilament nylon yarn, twisted counter-clockwise, in excess of 50 turns per meter. The yarn is orange in color and wrapped on a black plastic spool with a revolving handle.

ISSUE:

Whether the subject merchandise is classifiable in heading 5406, HTSUSA, which provides for man-made filament yarn (other than sewing thread), put up for retail sale or in heading 5402, HTSUSA, which provides for synthetic filament yarn (other than sewing thread), not put up for retail sale.

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides, in part, that classification decisions are to be “determined according to the terms of the headings and any relative section or chapter notes.” In the event that goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. While neither legally binding nor dispositive of classification issues, the EN provide commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).

Section XI, Chapter 54, HTSUSA, provides for man-made filaments. Note 1 to Chapter 54 provides that the terms "man-made", "synthetic" and "artificial" shall have the same meanings when used in relation to textile materials. Within Chapter 54, the competing headings under consideration are heading 5406, HTSUSA, which provides for man-made filament yarn (other than sewing thread), put up for retail sale and heading 5402, HTSUSA, which provides for synthetic filament yarn (other than sewing thread), not put up for retail sale.

Heading 5406, HTSUSA, provides for man-made filament yarn put up for retail sale. Note 4(A)(a)(i) to Section XI, HTSUSA, defines the term "put up for retail sale" as put up on cards, reels, tubes or similar supports, of a weight (including support) not exceeding 85 grams in the case of man-made filament yarn. The subject merchandise is twisted nylon filament yarn on a spool and it weighs 161.2 grams, including the spool. As the merchandise under consideration weighs more than 85 grams, it does not satisfy the definition of "put up for retail sale." Moreover, none of the exceptions to the term "put up for retail sale" listed in Note 4(B) to Section XI, HTSUSA, apply to the merchandise under consideration. Thus, the subject nylon yarn on a spool is not properly classifiable in heading 5406, HTSUSA, as man-made filament yarn put up for retail sale.

Having precluded classification in heading 5406, HTSUSA, the next heading under consideration is heading 5402, HTSUSA, which provides for synthetic filament yarn (other than sewing thread), not put up for retail sale, including synthetic monofilament of less than 67 decitex. The EN to heading 5402 provide, in pertinent part, that the heading covers synthetic filament yarn (other than sewing thread), including:

(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.

Accordingly, the EN to heading 5402, HTSUSA, encompasses both synthetic monofilament and multifilament. Moreover, nylon is a synthetic material. See Note 1 to Chapter 54, HTSUSA, and HQ 088557, dated May 23, 1991.

The merchandise at issue is a plied yarn composed of three individual multifilament nylon yarns twisted together. The subject yarn is composed of nylon, which is a synthetic, and it is clearly not sewing thread. Therefore, as a three-ply multifilament synthetic yarn, the subject yarn falls within the scope of the EN to heading 5402. Accordingly, the subject nylon yarn on a spool is properly classifiable in heading 5402, HTSUSA, as synthetic filament yarn. See HQ 958135, dated March 18, 1996, (nylon multifilament yarn classifiable in heading 5402) and NY 803904, dated January 6, 1995 (two-ply polyester multifilament embroidery thread on a spool, classifiable in heading 5402). See also NY E80158, dated April 1, 1999; and NY G86022, dated January 29, 2001.

As the instant merchandise is a three-ply, multifilament, nylon, yarn on a spool, it is classified under subheading 5402.61.0000, HTSUSA, which provides for synthetic filament yarn (other than sewing thread), not put up for retail sale, including synthetic monofilament of less than 67 decitex: Other yarn, multiple (folded) or cabled: Of nylon or other polyamides.

HOLDING:

Based on the foregoing, the subject merchandise is classified in subheading 5402.61.0000, HTSUSA, which provides for synthetic filament yarn (other than sewing thread), not put up for retail sale, including synthetic monofilament of less than 67 decitex: Other yarn, multiple (folded) or cabled: Of nylon or other polyamides. The applicable rate of duty is 7.8 percent ad valorem and the textile restraint category is 606.

NY H85147 is hereby REVOKED. In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

The designated textile and apparel category may be subdivided into parts. If so, the 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 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 updated weekly and is available for inspection at your local Customs office. The Status Report on Current Import Quotas (Restraint Levels) is also available on the Customs Electronic Bulletin Board (CEBB) which can be found on the U.S. Customs Service Website at www.customs.gov.

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,

John Durant, Director
Commercial Rulings Division

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