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HQ 967349




January 25, 2005

CLA-2 RR:CR:TE 967349 KSH

TARIFF NO.: 3926.90.9880

Mr. Chris Murray
American Cargo Express, Inc.
Newark International Airport/Seaport
435 Division Street
Elizabeth, NJ 07201

RE: Revocation of New York Ruling Letter (NY) D80028, dated July 28, 1998; Classification of extruded polypropylene mesh.

Dear Mr. Murray:

This letter is to inform you that the Bureau of Customs and Border Protection (CBP) has reconsidered New York Ruling Letter (NY) D80028, issued to you on behalf of your client, Power Aisle, Inc., on July 28, 1998, concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of extruded polypropylene mesh. The article was classified in subheading 3920.20.0000, 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 polypropylene.” We have reviewed that ruling and found it to be in error. Therefore, this ruling revokes NY D80028.

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 revocation of NY D80028 was published on December 1, 2004, in Vol. 38, Number 49, of the CUSTOMS BULLETIN. CBP received no comments.

FACTS:

The product consists of extruded polypropylene mesh made in a continuous extrusion process and not from pre-existing filaments. This mesh can be placed over trees and plants to protect vegetables and fruits from birds. The mesh will be sold in a package and measure 7 feet by 20 feet.

ISSUE:

Whether the extruded polypropylene 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 polypropylene 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 polypropylene 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 D80028, dated July 28, 1998, is hereby revoked.

The extruded polypropylene 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

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