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HQ H003043




May 16, 2007

CLA-2 OT:RR:CTF:TCM H003043 BtB

CATEGORY: CLASSIFICATION

TARIFF NO.: 6005.33.0010

Frank J. Desiderio, Esq.
Joseph M. Spraragen, Esq.
Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP 399 Park Avenue
25th Floor
New York, NY 10022-4877

RE: Reconsideration of HQ 968200; classification of mesh debris netting

Dear MM. Desiderio and Spraragen:

This is in reply to your letter dated November 1, 2006, on behalf of Strongman Building Products Corp. (“Strongman”) to the Commercial Rulings Division of Regulations and Rulings, requesting reconsideration of Headquarters Ruling Letter (“HQ”) 968200, dated August 11, 2006, on the classification, under the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”), of several styles of mesh debris netting.

HQ 968200 was a reconsideration of four previously issued rulings: New York Ruling Letter (“NY”) C87245 issued May 1, 1998, NY C87894, issued May 21, 1998, NY F80765, issued December 17, 1999, and NY F82010, issued January 31, 2000.

The one type of mesh debris netting classified in NY C87245 was not specifically identified with a style or model number. The one type of mesh debris netting classified in NY C87894 was also not specifically identified with a style or model number. The single style of mesh debris netting classified in NY F80765 was specifically identified as “SBN 324.” The three styles of mesh debris netting classified in NY F82010 were specifically identified as “SBN-14-60,” “SBN-22” and “SBF-427.”

In support of your request for reconsideration, you submitted samples of SBN 324 and SBN-22. You also submitted samples of these styles to which a hem has been added to an edge of the netting. You identified these samples as “SBN324 W/HEM TOP CORNER” and “SBN22 W/HEM BOT. CORNER.” Additionally, we conducted an oral discussion of the issues involved in this matter on February 12, 2007.

Pursuant to your reconsideration request, we have reviewed HQ 968200. This ruling, HQ H003043, affirms HQ 968200, except for the “Effect On Other Rulings” section, which it modifies for the reason set forth below. 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 HQ 968200 was published in the Customs Bulletin, Volume 41, Number 18, on April 11, 2007. CBP received no comments during the notice and comment period that closed on May 11, 2007.

FACTS:

In HQ 968200, the four specifically identified styles of mesh debris netting (from NY F80765 and NY F82010) mentioned above were described as follows:

The merchandise at issue is mesh debris netting products used at construction sites to contain debris. Four of the products are identified as model numbers SBN-14-60, SBN-22, SBN-427 and SBN 324. A representative sample was sent for consideration in conjunction with the request for reconsideration. The models are materially similar, differing principally by weight

The products are manufactured from either high density polyethylene or 100% polyester that has been extruded into thread. The thread is cooled in water, stretched over rollers and wound onto spools. The spools are mounted onto a knitting machine. The thread is fed into the knitting machine which knits the pattern that includes button holes and self finishing. The product has stable, regularly spaced openings in the fabric. Textile strips are inserted along the edge ½ inch from the edge, reinforcing the area where the buttonholes have been formed. Four rows of contrasting color yarns are stitched 1½ inches from each edge. The product is wound onto a master roll measuring a width of either 8 feet six inches or 8 feet. Under one scenario, the product is cut to the desired length and the finished product is wound onto a core and packaged in clear plastic bags. Under a different scenario the product is woven to a specified length of 150 feet or 300 feet. The finished product is wound onto a core and packaged in a clear plastic bag.

To install the products, the roll is unwound from the top of a scaffolding. The fabric is affixed to the scaffolding by running plastic ties through the buttonholes and around the scaffolding poles.

While not specifically stated in the above quotation, SBN-14-60, SBN-22, SBN-427 and SBN 324 are of warp knit construction. Meanwhile, the fabric in NY C87245 was described as:

The fabric is stated to be made of 100 percent polyester material. It is of warp knit construction. Its intended use is in the construction industry. It will be used to prevent any debris from falling to the ground when persons are working from a scaffold.

Finally, the fabric in NY C87894 was described as:

The fabric is stated to be made of 100 percent polyethylene material. It is of warp knit construction. Its intended use is in the construction industry. It will be used to prevent any debris from falling to the ground when persons are working from a scaffold.

Because differences between SBN-14-60, SBN-22, SBN-427, SBN 324, and the fabric in NY C87245 and NY C87894 are not material for classification purposes, the styles are hereinafter collectively referred to as “the mesh debris netting at issue” or “the products at issue.”

In HQ 968200, CBP classified the mesh debris netting at issue in subheading 6005.33.0010, HTSUSA, which provides for "Warp knit fabrics (including those made on galloon knitting machines), other than those of headings 6001 to 6004: Of synthetic fibers: Of yarns of different colors, Open work fabrics."

ISSUE:

What is the classification of the mesh debris netting at issue?

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." If 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, in order.

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).

A product's classification is determined by first looking to the headings and section or chapter notes. See Orlando Food Corp. v. United States, 140 F.3d 1437 (Fed. Cir. 1998). Only after determining that a product is classifiable under the heading should one look to the subheadings to find the correct classification for the merchandise." Id.

Heading 6307, HTSUSA, provides for: “Other made up articles, including dress patterns.” In your request for reconsideration of NY C87245, NY C87894, NY F80765, and NY F82010 and in your request for reconsideration of HQ 968200, you asserted that the products at issue are classified in heading 6307, HTSUSA, because they are "made up” textile articles as defined by Note 7 to Section XI, HTSUSA.

Section XI, Note 7 of the HTSUSA, defines the term "made up" for the purposes of Section XI, as follows:

For the purposes of this section, the expression "made up" means:

Cut otherwise than into squares or rectangles;

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);

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 unravelling by whipping or by other simple means;

Cut to size and having undergone a process of drawn thread work;

Assembled by sewing, gumming or otherwise (other than piece goods consisting of two or more lengths of identical material joined end to end and piece goods composed of two or more textiles assembled in layers, whether or not padded); or

Knitted or crocheted to shape, whether presented as separate items or in the form of a number of items in the length.

You claim that the products at issue are "made up" because they meet the terms of Section XI, Note 7(b) and 7(c).

The ENs to Section XI, Note 7(b) and 7(c) are set forth in the General Notes, Section XI, (II) Chapters 56 to 63, and offer the following guidance:

Made up articles.

Under Note 7 to this Section, the expression "made up" in Chapters 56 to 63 means:

Produced in the finished state, ready for use (or merely needing separation by cutting dividing threads) without sewing or other working. Goods of this kind include products knitted or crocheted directly to shape and certain dusters, towels, table cloths, scarf squares, blankets, etc., with threads along the warp left unwoven or the weft edges cut to form a fringe. Such articles may have been woven separately on the loom, but may also have been simply cut from lengths of fabric which have bands of unwoven threads (generally warp threads) at regular intervals. These lengths of fabric, from which ready-made articles of the types described above may be obtained by simply cutting the dividing threads, are also considered as "made up" articles.

However, rectangular (including square) articles simply cut out 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. The fact that these articles may be presented folded or put up in packings (e.g., for retail sale) does not affect their classification.

Hemmed or with rolled edges or with a knotted fringe (whether or not incorporating added threads) at any of the edges (e.g., handkerchiefs with rolled edges and table covers with knotted fringes), but excluding fabrics the cut edges of which have been prevented from unravelling by whipping or by other simple means.

In regard to your claim that the products at issue meet the terms of Section XI, Note 7(b), you emphasized in your November 1, 2006 letter and in our oral conference that the products do not require and, in most cases, are not cut by the ultimate purchaser prior to use. In your letter, you stated: “[i]n the event that the end user is faced with excess product after the roll of netting is unfurled from the top of a building, he can, and does, simply fold over the excess product.”

Accepting your representation that the products at issue do not require cutting for use, the articles nevertheless do not meet the terms of Section XI, Note 7(b). In your request for reconsideration of NY C87245, NY C87894, NY F80765, and NY F82010, you described the manufacturing steps for the products at issue:

The manufacturing steps for the netting products are as follows: 1) high density polyethylene is extruded into thread; 2) the thread is cooled in water, stretched over rollers, and wound onto spools; 3) the spools are mounted onto a knitting machine; 4) the thread is fed into the knitting machine which knits the pattern, including button holes and hems; 5) the resultant product is wound onto a master roll from which the desired length, e.g., 150, 300 feet, etc. is cut; and the finished product is wound onto a core and packaged in clear plastic bags.

While you set forth the manufacturing steps above for all the styles of mesh debris netting at issue, SBN 324 and the fabric in NY C87245 are polyester, not polyethylene. However, it is our understanding that substantially similar manufacturing steps are undertaken in regard to SBN 324 and the fabric in NY C87245 although they are of polyester construction.

As emphasized in the ENs quoted above, 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 the note. See generally HQ 089058 (July 25, 1991), HQ 089203 (July 19, 1991), HQ 089592 (September 20, 1991), HQ 950786 (January 28, 1992), HQ 955457 (June 8, 1994), HQ 955458 (June 8, 1994), HQ 966293 (March 3, 2004), HQ 959184 (November 13, 1996), and HQ 967601 (March 22, 2006). In the case at hand, as you described, the products at issue are simply cut from larger pieces of fabric. They, therefore, are not regarded as “produced in the finished state.” The buttonholing of the fabric also does not constitute “other working” because the buttonholes are formed in the knitting process. Additionally, the winding of the articles onto a core and packaging them in plastic bags does not affect its classification.

In regard to your claim that the products at issue meet the terms of Section XI, Note 7(c), you emphasized in your November 1, 2006 letter and in our oral conference that the tighter knit at the fabric edges is not for the purpose of preventing unraveling, but to reinforce the button holes running down the sides of the mesh debris netting at issue. In your letter, you also stated: “[h]ere, the design of the netting itself prevents unraveling and serves to maintain the strength of the product; no selvage is required or present. The products are essentially self-hemmed and, as such, are made up articles pursuant to Note 7(c) to Section XI.”

In order for an article to be “made up” under Note 7(c) to Section XI, HTSUSA, it must contain a hem that is necessary for its intended use. See e.g., HQ 083013 (March 20, 1989), HQ 952650 (June 8, 1993), and HQ 959132 (September 23, 1996). We generally recognize a traditional hem to be an edge of fabric that has been folded, folded up again, and then sewn down. See generally www.wikipedia.com . We have recognized that, in addition to traditional hems, there are several types of hems. See e.g., HQ 952650 (recognizing a “Continental hem”) and HQ 085549 (November 21, 1989, recognizing a “Cornelli hem” (also known as a “replique hem”)).

The mesh debris netting at issue is not hemmed. There is neither a traditional, nor any other kind, of hem at any of its edges. Although the design or construction of the products at issue (i.e., the polyester or polyethylene thread and the warp knit) may prevent unraveling of the products, this design or construction does not constitute a hem. As there is no hem on the products at issue, it is impossible to discuss whether such hem makes the products suitable for their intended use.

While you did not refer to the ruling in your previous submissions or in our oral conference, in NY K84512, issued March 30, 2004, CBP classified bird control nets for vineyards. These nets were classified in heading 6307, HTSUSA, as “made up” articles. While these bird nets may sound substantially similar to the mesh debris netting at issue, they are not. The bird nets of NY K84512 have several distinct features that differentiate them from the products at issue, including several rows of double ply mesh around their edges and brightly colored pace markers at distance intervals.

In light of the above, we find that the mesh debris netting at issue is not “made up” pursuant to Section XI, Note 7(b) or 7(c). The products are not “produced in the finished state, ready for use” or “hemmed” under the respective notes. Rather, in their condition as imported, the products at issue are simply fabric in the piece imported on rolls. By application of GRI 1, the mesh netting products are classified in heading 6005, HTSUSA, which provides for "Warp knit fabrics (including those made on galloon knitting machines), other than those of headings 6001 to 6004.” They are specifically provided for in subheading 6005.33.0010, HTSUSA, which provides for "Warp knit fabrics (including those made on galloon knitting machines), other than those of headings 6001 to 6004: Of synthetic fibers: Of yarns of different colors, Open work fabrics."

As stated above, you submitted samples of SBN-324 and SBN-22 to which a hem has been added to an edge of the netting (identified as “SBN324 W/HEM TOP CORNER” and “SBN22 W/HEM BOT. CORNER”). As these samples are not identical to the merchandise that was classified in HQ 968200, we could not consider them in this reconsideration of HQ 968200. However, you are encouraged to request ruling letters on the styles having this construction.

While the analysis of HQ 968200 is correct, the “Effect On Other Rulings” section of that ruling erroneously stated:

NY F82010, dated January 31, 2000; NY F80765, dated December 17, 1999; NY C87894, dated May 21, 1998 and; NY C87245, dated May 1, 1998, are hereby affirmed.

This statement was in error because the subheadings in which the merchandise had been classified in the above rulings (subheading 6002.43.0080, HTSUSA, and subheading 6002.43.0010, HTSUSA) were deleted from the HTSUSA in 2002 to update the HTSUS to reflect modifications made to the Harmonized Commodity Description and Coding System. Consequently, NY F82010, NY F80765, NY C87894, NY C87245, were revoked by operation of law on the date these two subheadings were deleted from the HTSUSA. Accordingly, it was impossible to affirm NY F82010, NY F80765, NY C87894, and NY C87245 on August 11, 2006, because these four rulings had already been revoked by operation of law.

HOLDING:

By application of GRI 1, the mesh debris netting at issue (styles SBN-14-60, SBN-22, SBN-427, SBN 324, and the fabric in NY C87245 and NY C87894) is classified in heading 6005, HTSUSA. It is provided for by subheading 6005.33.0010, HTSUSA, which provides for "Warp knit fabrics (including those made on galloon knitting machines), other than those of headings 6001 to 6004: Of synthetic fibers: Of yarns of different colors, Open work fabrics." The applicable column one, general duty rate under the 2007 HTSUSA is 10% ad valorem. The products at issue fall within textile category designation 229.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the world wide web at www.usitc.gov.

Quota/visa requirements are no longer applicable for merchandise which is the product of World Trade Organization (“WTO”) member countries. The textile category number above applies to merchandise produced in non-WTO member countries. Quota and visa requirements are the result of international agreements that are subject to frequent renegotiations and changes. To obtain the most current information on quota and visa requirements applicable to this merchandise, we suggest you check, close to the time of shipment, the “Textile Status Report for Absolute Quotas” which is available on our web site at www.cbp.gov. For current information regarding possible textile safeguard actions on goods from China and related issues, we refer you to the web site of the Office of Textiles and Apparel of the Department of Commerce at otexa.ita.doc.gov.

EFFECT ON OTHER RULINGS:

HQ 968200 is affirmed, except for the “Effect On Other Rulings” section, which is modified as set forth above. 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

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