CLA-2: RR:TC:TE 959848 RH
Marilyn Havens
Port Director
U.S. Customs Service
150 North Royal Street
Mobile, AL 36602
RE: Double Difference; rope; composite good; heading 5607; Note
2, Section XI;
Subheading Note 2, Section XI; GRI 3
Dear Ms. Havens:
This is in reply to a memorandum dated October 7, 1996, from the
Chief, Textiles and Apparel Branch, National Commodity Specialist
Division, regarding the difference of opinion between your port
and the National Import Specialist (NIS) as to the classification
of rope from Mexico. Your port initiated the "double difference"
on CF 6431. The NIS forwarded the matter to our office in
accordance with 19 C.F.R. 177.11.
The NIS believes that the outer shell imparts the essential
character to the rope and would classify it under subheading
5607.50.4000 of the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA) (rope of polyester). The import
specialist at your port believes that the essential character of
the rope cannot be determined, and he would classify it by the
material which predominates by weight under subheading
5607.49.3000, HTSUSA (rope of polypropylene).
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FACTS:
The rope in question, referred to as Cotton/Poly Sash Cord, is
packaged in 100 foot lengths for retail sale. The core consists
of a nonwoven polypropylene 5 cm wide strip which is wrapped
around polypropylene multifilaments. The outer shell is cotton
and polyester. The label reflects that the fiber content of the
rope is 70 percent polyester and 30 percent cotton. However, you
state that the importer informed you that the actual fiber
content of the rope is 29 percent cotton, 29 percent staple
polyester, 23 percent nonwoven polypropylene and 19 percent
polypropylene multifilaments.
ISSUE:
What is the proper application of Note 2, Section XI, and
Subheading Note 2, Section XI, to the classification of the rope
in question?
LAW AND ANALYSIS:
Classification of goods under the Harmonized Tariff Schedule of
the United States Annotated (HTSUSA) is governed by the General
Rules of Interpretation (GRIs). GRI 1 provides that
classification shall be determined according to the terms of the
headings and any relative section or chapter notes. Rope of
textile material is classifiable under heading 5607, HTSUSA,
which encompasses:
Twine, cordage, ropes and cables, whether or not
plaited or braided and whether or not impregnated,
coated, covered or sheathed with rubber or plastics.
Classification of the rope by its fiber content occurs at the
subheading level. Within heading 5607, ropes of polypropylene
are classifiable under subheading 5607.49, HTSUSA, ropes of
polyester are classifiable under subheading 5607.50, HTSUSA, and
ropes of cotton are classifiable under subheading 5607.90,
HTSUSA. Pursuant to the principles of GRI 1, we refer to the
section notes for heading 5607, which provide instruction for the
classification of articles composed of two or more textile
materials.
Note 2(A), Section XI, HTSUSA, provides in its entirety:
Goods classifiable in Chapters 50 to 55 or in
heading No. 58.09 or 59.02 and of a mixture or two
or more textile materials are to be classified as
if consisting wholly of that one textile material
which predominates by weight over any other single
textile material.
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When no one textile material predominates by weight,
the goods are to be classified as if consisting wholly
of that one textile material which is covered by the
heading which occurs last in numerical order among
those which equally merit consideration.
Subheading Note 2, Section XI, provides in part:
(A) Products of Chapters 56 to 63 containing two or
more textile materials are to be regarded as
consisting wholly of that textile material which
would be selected under Note 2 to this Section for
the classification of a product of Chapters 50 to
55 consisting of the same textile materials.
(B) For the application of this rule:
(a) where appropriate, only the part which determines
the classification under
Interpretative Rule 3 shall be taken into account.
In Headquarters Ruling Letter 957751, dated June 6, 1995, Customs
held that Subheading Note 2(B)(a), Section XI, required that
classification [of a composite good at the subheading level] be
determined using GRI 3 - not chief weight. In that case, the
merchandise was a cord classified under heading 5808, HTSUSA, and
was constructed of a polyester core with an outer covering of
braided metallic yarn. We held that the braided outer covering
imparted the essential character to the cord. The rope at issue
is also a composite good and, therefore, we must first utilize
GRI 3 to determine which "part" (i.e., the inner core or the
outer covering) will "be taken into account" in applying the rule
in Subheading Note 2(A), Section XI.
GRI 3(b) directs that a composite good which cannot be classified
by reference to 3(a) (most specific description), as in this
case, shall be classified as if consisting of the material or
component which imparts its essential character. We agree with
the NIS that, like the metallic braided cord in HQ 957781, the
outer covering in this case imparts the essential character to
the rope. It gives the rope identity by providing form and shape
and by holding the other components together. The core materials
increase the strength of the subject goods, but it is the braided
outer shell that establishes the identity as rope.
Next, we must decide which of the two fibers of the outer shell,
cotton or polyester, will determine classification. Subheading
Note 2(A) instructs us to classify goods as if consisting wholly
of that textile material which would be selected under Note 2,
Section XI. Under the first part of Note 2, goods are
classifiable by the material that predominates by weight. In
this case, the cotton and polyester each comprise 50 percent of
the outer shell. Thus, we proceed to the second part of Note 2,
which states that when no material predominates by weight, goods
are classified as if consisting wholly of that one textile
material which is covered by the heading which occurs last in
numerical order.
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In the NIS's opinion, the competing headings are 5201 (cotton)
and 5503 (polyester), which he bases on a literal interpretation
of Note 2(A). In his memorandum, he states that Subheading
Note 2:
[D]oes not extend the Note 2 rule mutatis mutandis to
the subheading level. Instead, it says to select that
material which could be selected . . . for the
classification of a product of chapters 50 to 55.' In
this case, then, the competing materials are cotton of
heading 5201 and polyester fiber of heading 5503.
Because the provision for polyester fiber occurs last
in numerical order, we classify this rope as if
consisting wholly of polyester [under subheading
5607.50.4000, HTSUSA].
We disagree with which headings of the rope equally merit
consideration. Classification of merchandise begins at the four
digit heading level and proceeds in a hierarchial manner. The
language in Subheading Note 2(A), Section XI, mandates that we
use the classification principles set forth in Note 2(A), Section
XI, i.e., by predominate weight or, alternatively, by the heading
which occurs last in numerical order. Since subheading Note 2(A)
is concerned with the classification of goods at the subheading
level, these principles are applied at the subheading level under
the same heading or subheading in which the merchandise is
classified.
In this case, the rope is classified in heading 5607. At the
subheading level, there is a provision for rope of cotton
(5607.90) and for rope of polyester (5607.50). Since the rope is
not classifiable by the textile material that predominates by
weight, classification is based on the textile material which is
covered by the heading which occurs last in numerical order - in
this case 5607.90.
HOLDING:
The rope under consideration is classifiable under subheading
5607.90.2000, HTSUSA, which provides for, among other things,
rope of other fibers. It is dutiable at the 1996 general column
rate of 7.0 percent ad valorem, and the textile category is 201.
Sincerely,
John Durant, Director
Tariff Classification Appeals
Division