CLA-2 CO:R:C:T 087654 CRS
Assistant District Director
Commercial Operations Division
U.S. Customs Service
Patrick V. McNamara Building
477 Michigan Avenue
Detroit, MI 48266
RE: Protest and application for further review. Defective tire
cord fabric that is not worn out, soiled or torn not classifiable
as rags; defective fabrics or fabrics with faults that are not
worn out or torn are classifiable in the headings appropriate to
new fabrics. Protest denied.
Dear Sir:
This is in reply to your memorandum dated May 14, 1990, to
the Protest Reviewer, Chicago Region, concerning a Protest and
Application for Further Review (Protest No. 3801-0-001436) filed
by John V. Carr & Son, Inc., on behalf of Victor Gelb, Inc. A
sample was provided.
FACTS:
The article in question is a dyed open weave fabric made
from 100 percent 3-ply woven polyester filament yarn in the warp
and 100 percent 1-ply woven viscose rayon fibers in the weft.
The total weight of the fabric is approximately 402 g/m of which
polyester represents 99 percent and rayon 1 percent. Laboratory
analysis has determined that the yarns are not high tenacity
yarns as defined by Note 6, Section XI, HTSUSA.
Protestant states that the fabric is defective and thus is
not fit for its intended purpose, the manufacture of pneumatic
tires. In order to be suitable for making tires, the fabric must
meet certain specifications. The instant fabric is defective for
various reasons, such as out-of-spec treatment, fabric defects,
tensile strength. On this basis protestant maintains that the
fabric should be classified as rags of heading 6310, HTSUSA. The
fabric is manufactured in Canada. Once imported, the fabric is
used in the manufacture of mechanical rubber products such as V-
belts and truck mats.
ISSUE:
Whether the tire cord fabric in question is classifiable in
heading 6310, HTSUSA.
LAW AND ANALYSIS:
Articles are classified under the HTSUSA in accordance with
the General Rules of Interpretation (GRIs). GRI 1 provides that
the classification of articles is determined according to the
terms of the headings and any relative section or chapter notes
and, provided the headings or notes do not otherwise require,
according to the remaining GRIs taken in order.
Heading 6310, HTSUSA, provides for, inter alia, used or new
rags. The Explanatory Notes (EN), while not legally binding,
constitute the official interpretation of the Harmonized System
at the international level. EN 63.10 provides in pertinent part:
(1) Rags of textile fabrics (including knitted or crocheted
fabrics, felt or nonwovens). Rags may consist of
articles of furnishing or clothing or of other articles
so worn out, soiled or torn as to be beyond cleaning or
repair, or of new small cuttings (e.g., dressmakers' or
tailors' snippings).
* * *
To fall in the heading, these products must be worn,
dirty or torn, or in small pieces. They are generally
fit only for the recovery (e.g. by pulling) of the
fibres ....
All other textile waste and scrap, however, is excluded
from this heading.
The heading also excludes fabrics showing faults in
weaving, dyeing, etc., but which do not fulfill the
conditions mentioned above. These fabrics are
classified in the headings appropriate to new fabrics.
The fabric in question is unused and although defective and
not suitable for the manufacture of tires, is not worn out,
soiled or torn. EN 63.10 states that fabrics showing faults
which are not worn out, soiled or torn are classifiable as new
fabrics. Consequently, the instant fabric is not classifiable as
rags of heading 6310.
Heading 5902, HTSUSA, provides for tire cord fabric of high
tenacity yarn of nylon or other polyamides, polyesters or viscose
rayon. However, the instant fabric is not made from high
tenacity yarns and therefore is not classifiable in heading 5902.
Heading 5407, HTSUSA, provides for woven fabrics of
synthetic filament yarns. Note 1, Chapter 54, HTSUSA, defines
the term "synthetic" when used in relation to fibers to mean
fibers obtained by the polymerization of organic monomers such as
polyester. The fabric in question is made from polyester yarns
in the warp and rayon yarns in the filling. Note 2(A), Section
XI, HTSUSA, states that goods classifiable in Chapters 50 to 55
that consist of a mixture of two or more textile materials are
classifiable as if consisting wholly of that one textile material
that predominates by weight over each other single textile
material. However, the rayon yarns constitute only 1 percent of
the total weight and have no function other than to hold the
polyester warp yarns in place. Consequently, it is Customs' view
the rayon yarns are de minimis. As a result, the tire cord
fabric is classifiable as if it consisted entirely of polyester.
The tire cord fabric is wholly manufactured in Canada and
pursuant to General Note 3(c)(vii)(B), HTSUSA, is eligible for
treatment as goods originating in the territory of Canada.
HOLDING:
The protest should be denied. A copy of this ruling should
be sent to the protestant together with the Form 19 Notice of
Action.
The instant tire cord fabric is classifiable in subheading
5407.52.2060, HTSUSA, under the provision for woven fabrics of
synthetic filament yarn, including fabrics obtained from
materials of heading 5404; other woven fabrics, containing 85
percent or more by weight of textured polyester filaments; dyed;
other; weighing more than 170 g/m. As goods originating in the
territory of Canada the fabric is dutiable at the rate of 11.9
percent ad valorem.
The designated textile and apparel category may be
subdivided into parts. If so, 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 that 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 available for
inspection at your local Customs office.
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