CLA-2:RR:CR:TE 966281 JFS
Ms. Brenda Chidester
Western Overseas Corp.
4111-K Roselake Drive
Charlotte, NC 28217
Re: Revocation of NY G84179, NY B86204, and NY 818692; Geotextile Mesh Material; Chapter 39, HTSUSA; Other Article of Plastic; Not “Sheeting” of Plastic
Dear Ms. Chidester:
Customs has issued three rulings, New York Ruling Letter (NY) G84179, dated Noveber 15, 2000, NY B86204, dated July 2, 1997, and NY 818692, dated February 8, 1996, to you and your firm on behalf of your client, Huesker Inc., concerning the tariff classification of a geotextile material under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Customs has also issued HQ 965747, dated September 10, 2002, and NY B89661, dated September 30, 1997, concerning the tariff classification of substantially similar geotextile material manufactured by a producer other than your client.
Pursuant to section 625(c)(1) Tariff Act of 1930 (19 U.S.C. 1625(c)(1)) as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-82, 107 Stat. 2057, 2186), notice of the proposed revocation of HQ 965747 and NY B89661, was published on January 8, 2003, in the Customs Bulletin, Volume 37, Number 2. As explained in the notice, the period within which to submit comments on this proposal ended on February 7, 2003. One set of comments was received in opposition to the proposed revocation. It has come to Customs attention that the above referenced rulings issued to your client are subject to the proposed revocation. After careful consideration of the comments, as set forth in the LAW AND ANALYSIS section of this ruling, we have decided to revoke those rulings. Accordingly, this ruling revokes NY G84179, NY B86204, and NY 818692.
FACTS:
In NY G84179, the samples were described as follows:
The instant sample, identified as Fortrac MP Geogrid material, consists of an open mesh leno woven fabric composed of high tenacity polyester yarns. The woven fabric is subsequently, entirely coated with a black colored, compact polyvinyl chloride plastics material (not PVA as also mentioned in the importer’s letter) that is amply visible to the naked eye other than by a change of color. Because of the mesh size, only the yarns remain completely covered by the plastic. The instant sample has a mesh size of approximately 7/8" x 1 1/8." Your correspondence and brochure indicate that this material will range in weight from 5.5 to 21 ounces per square yard have mesh sizes varying from .8 x .8. inch to 2.0 x 2.0 inch. These materials are of a type that are used in construction projects for soil reinforcement in retaining walls, slopes and landfill lining systems, etc. They will be imported as roll goods having standard roll dimensions of 328 feet long by 12.14 feet wide.
In NY B86204, the samples were described as follows:
The instant sample, identified as "Fornit 20 Geogrid" material, consists of an open mesh leno woven fabric composed of polypropylene man-made fiber yarns that have been thoroughly coated and impregnated (per a recent telephone conversation with Jim Martin of Huesker Inc.,) with an acrylic plastics material. The instant sample has a mesh size of approximately 1/2". Your correspondence indicates that the material weighs approximately 4 ounces per square yard and will be imported in standard roll sizes of 16.4 foot wide and 656.14 feet long. These "Fornit" Geogrid materials have been developed to stabilize poor soils by providing tensile reinforcement and soil separation. They confine and strengthen road base thereby reducing the required aggregate base thickness.
In NY 818692, the samples were described as follows:
While you submitted two representative samples, Fortrac 55/30-20 and Fortrac 35/20-20, respectively, your brochure refers to several other styles. These materials consist of open mesh leno woven fabrics composed of high tenacity polyester yarns that have been thoroughly coated and impregnated with a polyvinyl chloride plastics material. The instant samples both have mesh sizes of approximately 3/4". Your correspondence indicates that these materials will range in weight from 5.5 to 30 ounces per square yard and 40 to 220 mils in thickness. These materials are of a type that are used in construction projects for reinforcement of roads, walls, slopes and embankments, etc. They will be imported as roll goods.
ISSUE:
Whether plastic-coated geotextile material that is of an open mesh weave is classified as a sheet of plastic in subheading 3921.90, HTSUSA, or as an “other” article of plastics in subheading 3926.90, 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 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.
In HQ 965747, Customs classified geotextile material (hereinafter “Raugrid” fabric”) in subheading 3921.90.1950, HTSUSA, as an other sheet of noncellular plastics, combined with a single textile material. The Raugrid fabric is substantially similar to the instant geotextile material. In the comments received by Customs, the commenter argues that the Raugrid fabric was improperly classified in Chapter 39, HTSUSA, and should be classified in heading 5903, HTSUSA, which provides, in part, for: “[t]extile fabrics impregnated, coated, covered or laminated with plastics . . . .” Emphasis added. The commenter reasons that Note 2(a)(3) to Ch. 59 only excludes products “in which the textile fabric is either completely embedded in plastics or entirely coated or covered on both sides with such material, provided that such coating or covering can be seen with the naked eye . . . .” The commenter contends that, because Note 2(a)(3) does not include “impregnated” fabrics as one of the fabrics excluded from Chapter 59, fabrics that are impregnated, even if also covered and coated with plastics, are not excluded from classification in Chapter 59, HTSUSA.
In support of this argument the commenter describes the mechanical process by which the Raugrid fabric is “impregnated” with plastics. Additionally, the commenter provided a lab report to demonstrate that the fabric is impregnated, and not just embedded, covered or coated with plastics. For the purposes of this ruling, Customs will assume that the Raugrid fabric has undergone an “impregnation” process that is more than the dipping or coating that was described in the original ruling request that resulted in the issuance of HQ 965747.
The commenter argues that “[t]he fact that the impregnation process results in a coating on the surface of the article in addition to the impregnation is not sufficient reason to apply Note 2(a)(3) to Chapter 59 to exclude [your client’s] product from Chapter 59.” We find, however, that the intent of Note 2(a)(3) to Chapter 59 is to classify those products “completely embedded in” or “entirely coated or covered” with plastics under the headings that provide for plastics or articles of plastics because they have acquired the characteristics of plastics. The Raugrid fabrics are embedded and entirely coated or covered with plastics. The fact that the fabric also underwent an impregnation process resulting in some impregnation of the fabric, only addresses the degree to which the PVC penetrated the surface of the fabric and yarns. It does not alter the fact the fabric is entirely coated with plastics.
The commenter further argues that the Raugrid fabric is not excluded from Chapter 59, HTSUSA, by operation of Note 2(a), because the textile material is not present merely for reinforcement purposes. Note 2(a) to chapter 59, HTSUSA, lists six alternative types of products that are excluded from classification in Chapter 59. Products of cellular plastics in which the textile fabric is present merely for reinforcing purposes, enumerated in Note 2(a)(5), are merely one type of the six types of fabrics or products to which heading 5903 does not apply. The note does not require that the plastic coated fabrics excluded by the terms of Note 2(a)(3), also be present merely for reinforcing purposes.
The instant geotextile material, like the Raugrid fabric, is excluded from classification in heading 5903, HTSUSA, by operation of Note 2(a)(3) to Chapter 59, HTSUSA, and is properly classified in Chapter 39, HTSUSA. Having concluded that the geotextile material is classified in Chapter 39, HTSUSA, it must next be determined in what heading the material will be classified. It is further noted that Customs decision in HQ 965747, to classify the geotextile material in heading 3921, HTSUSA, is in conflict with a recent decision by the World Customs Organization’s (WCO) Harmonized System Committee (HSC). In the HSC decision, substantially similar merchandise was classified in subheading 3926.90, HS. See Annex L/5 to Doc. NC0590B2 (HSC/29/May 2002).
The HSC decision was based on the application of Legal Note 10 to Chapter 39, which states that:
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 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). Customs treats decisions of the HSC in the same manner as the guidance of the EN’s, i.e., while neither legally binding nor dispositive, they provide a commentary on the scope of each heading of the HTS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80. Moreover, EN’s and decisions of the HSC “should receive considerable weight.” Id. Customs is in agreement with the conclusions of the HSC referenced above.
The tariff does not define the term “sheet.” However, in Sarne Handbags Corp. v. United States, 100 F. Supp. 2d 1126 (2000), the Court of International Trade 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.
The open spaces of the instant geotextile material are large enough that the material cannot 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 is not tight enough, and the yarns are not close enough, for them to form a continuous surface. Accordingly, the instant geotextile material is not “sheeting,” nor a sheet of plastic that is classifiable in heading 3921, HTSUSA.
Heading 3926, HTSUSA, essentially covers articles of plastics not elsewhere specified. Since there are no other headings in Chapter 39 that specifically provide for the instant geotextile material, we agree with the HSC that subheading 3926.90, is the proper six digit subheading in which to classify the instant good. We find that the geotextile material is specifically 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 G84179, dated November 15, 2000, NY B86204, dated July 2, 1997, and NY 818692 dated February 8, 1996, are hereby revoked. The instant geotextile material 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 percent ad valorem.
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, Acting Director
Commercial Rulings Division