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HQ 965889




March 17, 2003

CLA-2:RR:CR:TE 965889 JFS

CATEGORY: CLASSIFICATION

TARIFF NO.: 3926.90.9880

Michael E. Zeller, Esq.
Moore & Van Allen, PLLC
Suite 4700
100 North Tryon Street
Charlotte, NC 28202-4003

RE: Revocation of HQ 965747 and NY B89661; Geotextile Mesh Material; Chapter 39, HTSUSA; Other Article of Plastic; Not “Sheeting” of Plastic

Dear Mr. Zeller:

On September 10, 2002, Headquarters Ruling Letter (HQ) 965747, dated September 10, 2002, was issued to you on behalf of your client, Luckenhaus, North America, Inc., concerning the tariff classification of a geotextile material under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). That ruling was issued in response to a request for reconsideration of New York Ruling Letter (NY) B89661, dated September 30, 1997.

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 HQ 965747 and NY B89661 was published on January 8, 2003, in the Customs Bulletin, Volume 37, Number 2. As explained in the notice, the period within which to submit comments on this proposal ended on February 7, 2003. One set of comments, those submitted by you on behalf of your client, was received in opposition to the proposed revocation. After careful consideration of the comments, as set forth in the LAW AND ANALYSIS section of this ruling, we have determined to proceed. Therefore, this ruling revokes HQ 965747 and NY B89661.

FACTS:

The samples considered in HQ 965747 are geotextile materials that are constructed from man-made yarns that are woven together on a standard
weaving loom. The yarns are woven into a mesh, the open spaces of which vary from 16mm x 16mm, to 21mm x 24mm. In your request for reconsideration you stated that the fabric is “coated with PVC dispersion by dipping curing.”

In NY B89661, a nearly identical material was considered and was described as follows:

The sample submitted, identified as "Raugrid" material, consists of an open mesh leno woven high tenacity polyester man-made fiber fabric that has been thoroughly coated and impregnated with a polyvinyl chloride plastics material. The instant sample has a mesh size of approximately 1/2". Your letter indicates that the PVC portion comprises 60% by weight of the total weight of the material. You indicate that this material, which will be imported as roll goods, will be used for civil engineering, waste containment and road pavement overlay applications, etc.

ISSUE:

Whether plastic coated geotextile material that is of an open mesh weave is classified as a sheet of plastic in subheading 3921.90, HTSUSA, or as an “other” article of plastics in subheading 3926.90, HTSUSA.

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the 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’s) represent 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. The EN’s, although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUSA, and are generally indicative of the proper interpretation of these headings.

In HQ 965747, Customs classified the geotextile material in subheading 3921.90.1950, HTSUSA, as an other sheet of noncellular plastics, combined with a single textile material. In your comments, you argue that the geotextile material was improperly classified in Chapter 39, HTSUSA, and should be classified in heading 5903, HTSUSA, which provides, in part, for: “[t]extile fabrics impregnated, coated, covered or laminated with plastics . . . .” Emphasis added. You reason that Note 2(a)(3) to Ch. 59 only excludes products “in which the textile fabric is either completely embedded in plastics or entirely coated or covered on both sides with such material, provided that such coating or covering can be seen with the naked eye . . . .” You contend that, because Note 2(a)(3) does not include “impregnated” fabrics as one of the fabrics excluded from Chapter 59, fabrics that are impregnated, even if also covered and coated with plastics, are not excluded from classification in Chapter 59, HTSUSA.

In support of this argument you describe the mechanical process by which the instant fabric is “impregnated” with plastics. Additionally, you provide a lab report to demonstrate that the fabric is impregnated, and not just embedded, covered or coated with plastics. For the purposes of this ruling, Customs will assume that the fabric has undergone an “impregnation” process that is more than the dipping or coating that was described in your original ruling request that resulted in the issuance of HQ 965747.

In your comments, you argue that “[t]he fact that the impregnation process results in a coating on the surface of the article in addition to the impregnation is not sufficient reason to apply Note 2(a)(3) to Chapter 59 to exclude [your client’s] product from Chapter 59.” We find, however, that the intent of Note 2(a)(3) to Chapter 59 is to classify those products “completely embedded in” or “entirely coated or covered” with plastics under the headings that provide for plastics or articles of plastics because they have acquired the characteristics of plastics. The instant fabrics are embedded and entirely coated or covered with plastics. The fact that the fabric also underwent an impregnation process resulting in some impregnation of the fabric, only addresses the degree to which the PVC penetrated the surface of the fabric and yarns. It does not alter the fact the fabric is entirely coated with plastics.

You further argue that the geotextile material is not excluded from Chapter 59, HTSUSA, by operation of Note 2(a), because the textile material is not present merely for reinforcement purposes. Note 2(a) to chapter 59, HTSUSA, lists six alternative types of products that are excluded from classification in Chapter 59. Products of cellular plastics in which the textile fabric is present merely for reinforcing purposes, enumerated in Note 2(a)(5), are merely one type of the six types of fabrics or products to which heading 5903 does not apply. The note does not require that the plastic coated fabrics excluded by the terms of Note 2(a)(3), also be present merely for reinforcing purposes.

By operation of Note 2(a)(3) to Chapter 59, HTSUSA, the instant geotextile material is excluded from classification in heading 5903, HTSUSA, and is properly classified in Chapter 39, HTSUSA. Having concluded that the geotextile material is classified in Chapter 39, HTSUSA, it must next be determined in what heading the material will be classified. It is further noted that Customs decision in HQ 965747, to classify the geotextile material in heading 3921, HTSUSA, is in conflict with a recent decision by the World Customs Organization’s (WCO) Harmonized System Committee (HSC). In the HSC decision, substantially similar merchandise was classified in subheading 3926.90, HS. See Annex L/5 to Doc. NC0590B2 (HSC/29/May 2002).

The HSC decision was based on the application of Legal Note 10 to Chapter 39, which states that:

In headings 3920 and 3921, the expression "plates, sheets, film, foil and strip” applies only to plates, sheets, film, foil and strip (other than those of Chapter 54) and to blocks of regular geometric shape, whether or not printed or otherwise surface-worked, uncut or cut into rectangles (including squares) but not further worked (even if when so cut they become articles ready for use).

The HSC did not consider the geotextile material, with its large open weave, to be a “sheet.” See Annex G/11 to Doc. NC0510E2 (HSC/28/Nov. 2001). Customs treats decisions of the HSC in the same manner as the guidance of the EN’s, i.e., while neither legally binding nor dispositive, they provide a commentary on the scope of each heading of the HTS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80. Moreover, EN’s and decisions of the HSC “should receive considerable weight.” Id. Customs is in agreement with the conclusions of the HSC referenced above.

The tariff does not define the term “sheet.” However, in Sarne Handbags Corp. v. United States, 100 F. Supp. 2d 1126 (2000), the Court of International Trade defined the term “sheeting” as follows:

[T]he common meaning of “sheeting” is material in the form of or suitable for forming into a broad surface of something that is unusually thin, or is a material in the form of a continuous thin covering or coating.

The open spaces of the instant geotextile material are large enough that the material cannot be considered to have a “broad surface.” The unusually wide spacing in the weave interrupts any sort of surface continuity that could be formed, with each warp and weft yarn essentially standing alone, except where they intersect. The weave is not tight enough, and the yarns are not close enough, for them to form a continuous surface. Accordingly, the instant geotextile material is not “sheeting,” nor a sheet of plastic that is classifiable in heading 3921, HTSUSA.

Heading 3926, HTSUSA, essentially covers articles of plastics not elsewhere specified. Since there are no other headings in Chapter 39 that specifically provide for the instant geotextile material, we agree with the HSC that subheading 3926.90, is the proper six digit subheading in which to classify the instant good. We find that the geotextile material is specifically classified in subheading 3926.90.9880, HTSUSA, which provides for “Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other, Other.”

HOLDING:

HQ 965747, dated September 10, 2002, and NY B89661, dated September 30, 1997, are hereby revoked. The instant geotextile material is classified in subheading 3926.90.9880, HTSUSA, which provides for “Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other, Other.” The general column one rate of duty is 5.3 percent ad valorem.

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

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

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