CLA-2:RR:CR:TE 965747 JFS
Michael E. Zeller, Esq.
Moore & Van Allen, PLLC
Suite 4700
100 North Tryon Street
Charlotte, NC 28202-4003
Re: Request for Reconsideration of NY B89661, Dated September 30, 1997; Geotextile Material; Chapter 39, HTSUSA.
Dear Mr. Zeller:
On September 30, 1997, New York Ruling Letter (NY) B89661, was issued to your client, Luckenhaus, North America, Inc. The ruling was issued in response to a request for a binding ruling on the tariff classification of a geotextile material under the Harmonized Tariff Schedule Annotated (HTSUSA).
FACTS:
In NY B89661, the article under consideration was described as follows:
The sample submitted, identified as "Raugrid" material, consists of an open mesh leno woven high tenacity polyester man-made fiber fabric that has been thoroughly coated and impregnated with a polyvinyl chloride plastics material. The instant sample has a mesh size of approximately 1/2". Your letter indicates that the PVC portion comprises 60% by weight of the total weight of the material. You indicate that this material, which will be imported as roll goods, will be used for civil engineering, waste containment and road pavement overlay applications, etc.
The sample considered in NY B89661 was lost in the World Trade Center on September 11, 2001. You submitted additional samples that vary in size that are, for all essential purposes, identical to the original sample. The geotextile material is constructed from man-made yarns on a standard weaving loom. The yarns are woven into a mesh, the open spaces of which vary from 16mm x 16mm, to 21mm x 24mm. The woven mesh material is dipped in a bath of liquid polyvinyl chloride plastisol that is subsequently cured, making a soft, solid covering over the woven textile yarns.
In NY B89661, the geotextile material was classified under subheading 3921.90.1950, HTSUSA, which provides, in part, for other plates sheets, film, foil and strip of plastics, combined with a single textile material. You argue that the geotextile material is properly classified in heading 5903, HTSUSA, which provides for: “Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902.”
ISSUE:
Whether geotextile material manufactured from woven mesh that is thoroughly coated with plastic is classified in heading 5903, HTSUSA, as a plastic coated fabric.
LAW AND ANALYSIS:
Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI’s). 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 Harmonized Commodity Description and Coding System Explanatory Notes (EN’s) represent 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. The EN’s, although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUSA, and are generally indicative of the proper interpretation of these headings.
Legal Note 2(a)(3) to Chapter 59, HTSUSA, states that Heading 5903 applies to:
Textile fabrics impregnated, coated, covered or laminated with plastics, whatever the weight per square meter and whatever the nature of the plastic material (compact or cellular) other than:
* * *
(3) Products in which the textile fabric is either completely embedded in plastic or entirely coated or covered on both sides with such material, provided that such coating or covering can be seen with the naked eye with no account being taken of any resultant change in color (chapter 39).
Emphasis added.
The intent of Note 2(a)(3) to Chapter 59 is to classify those products “embedded in” or “completely covered” with plastics under the headings that provide for plastics or articles of plastics because they have acquired the characteristics of plastics. See HQ 963614, dated May 16, 2002 (classifying a warning vest made from PVC dipped polyester fiber mesh fabric in Chapter 39). The fabric comprising the article under consideration is entirely coated or covered on all sides with plastics. Accordingly, pursuant to Note 2(a)(3) to Chapter 59, HTSUSA, the geotextile material is excluded from classification in Chapter 59, HTSUSA.
The geotextile material is considered a good of plastics and is classified in Chapter 39, HTSUSA. At the subheading level, the material is classified in subheading 3921.90.1950, HTSUSA, as an other sheet of plastics, combined with a single textile material. However, in light of a recent Decision of the Harmonized System Committee (HSC), classifying a substantially similar article in subheading 3926.90, HTSUSA, Customs is considering whether the geotextile material is properly classified in subheading 3926.90, HTSUSA. Accordingly, if it is decided to adopt the HSC decision, appropriate action will be taken to modify or revoke inconsistent Customs decisions, including NY B89661 and this decision, under the provisions of 19 USC 1625(c).
HOLDING:
NY 848018 is hereby affirmed. The instant geotextile material is classified in subheading 3921.90.1950, HTSUSA, which provides for: “Other plates, sheets, film, foil and strip, of plastics: Other: Other, Other. The general column one rate of duty is 5.3 percent ad valorem.
Sincerely,
Myles B. Harmon, Acting Director
Commercial Rulings Division