United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 2005 HQ Rulings > HQ 967296 - HQ 967408 > HQ 967348

Previous Ruling Next Ruling
HQ 967348




January 25, 2005

CLA-2 RR:CR:TE 967348 KSH

TARIFF NO.: 3926.90.9880

Mr. John Mattson
North Star World Trade Services, Inc.
980 Lone Oak Road, Suite 160
Eagan, MN 55121

RE: Modification of New York Ruling Letter (NY) H88635, dated February 21, 2002; Classification of extruded polyethylene mesh.

Dear Mr. Mattson:

This letter is to inform you that the Bureau of Customs and Border Protection (CBP) has reconsidered New York Ruling Letter (NY) H88635, issued to you on behalf of your client Treessentials Company, on February 21, 2002, concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of extruded polyethylene mesh

We note you also requested classification of a second article identified as 100% polyethylene open-work warp knit fabric, however this modifcation pertains only to the extruded polyethylene mesh. . The article was classified in subheading 3920.10.0000, HTSUSA, which provides for “other plates, sheets, film, foil and strip, of plastics, noncellular and not reinforced, laminated, supported or similarly combined with other materials: of polymers of ethylene.” We have reviewed that ruling and found it to be in error as it pertains to the classification of the extruded polyethylene mesh. Therefore, this ruling modifies NY H88635 as it pertains to the extruded polyethylene mesh.

Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)), 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), notice of the proposed modification of NY H88653 was published on December 1, 2004, in Vol. 38, Number 49, of the CUSTOMS BULLETIN. CBP received no comments.

FACTS:

The article, identified by you as “Black Extruded Netting”, is an extruded polyethylene mesh. This article measures 14 feet in width and will be imported in 1000 foot lengths. It will weigh 2 to 5 pounds per 1000 square feet. It will be used in the agricultural industry to protect grape crops from damage by birds.

ISSUE:

Whether the extruded polyethylene mesh is classified in heading 3926, HTSUSA, or heading 3920, 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 Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI.

Heading 3920, HTSUSA, provides for “Other plates, sheets, film, foil and strip, of plastics, noncellular and not reinforced, laminated, supported or similarly combined with other materials.”

Note 10 to Chapter 39, HTSUS, provides:

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 term "sheets” is not defined in the text of the HTSUSA or the Explanatory Notes. When terms are not so defined, they are construed in accordance with their common and commercial meaning. Nippon Kogasku (USA), Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982).

Webster’s Third New International Dictionary (Webster’s) (1986) defines "sheeting," in relevant part, as "1: material in the form of sheets or suitable for forming into sheets: as . . . b: material (as a plastic) in the form of a continuous film . . . ." Id. at 2092. Webster’s defines "sheet," in relevant part, as "3 a: a broad stretch or surface of something that is usu. thin in comparison to its length and breadth . . . ." Id. at 2091. The Oxford English Dictionary (2d Ed. 1989) defines "sheet" as "9. a. A relatively thin piece of considerable breadth of a malleable, ductile, or pliable substance." Id. at 224.

The Court of International Trade has also examined the term sheet in various cases. In 3G Mermet Fabric Corp. v. United States, 135 F. Supp. 2d 151 (2001), the Court defined "sheet" as a "material in the form of a continuous stem covering or coating."

In Sarne Handbags Corp. v. United States, 100 F. Supp. 2d 1126 (2000), the Court 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.

In HQ 965889, dated March 17, 2003, geotextile material manufactured from woven mesh visibly coated on both sides with plastics was classified in heading 3926, HTSUSA. In so doing, we determined that the open spaces of the geotextile material were large enough that the material could not 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 was not tight enough, and the yarns were not close enough, for them to form a continuous surface.

Similarly, the World Customs Organization’s (WCO) Harmonized System Committee (HSC) classified substantially similar merchandise in subheading 3926.90, HTSUSA. See Annex L/5 to Doc. NC0590B2 (HSC/29/May 2002). 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).

The instant extruded polyethylene mesh, like the geotextile material of HQ 965889 and that classified by the HSC, has open spaces and cannot be considered to have a broad surface. Thus, the mesh lacks the continuity necessary to be classified as a sheet of plastics of heading 3920, HTSUSA. Accordingly, the extruded polyethylene mesh 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."

HOLDING:

NY H88635, dated February 21, 2002, is here by modified to reflect the proper classification of the “Black Extruded Netting”.

The extruded polyethylene mesh 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% ad valorem.

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 the local CBP office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

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

Previous Ruling Next Ruling

See also: