CLA-2 RR:CTF:TCM 968200 KSH
Frank J. Desiderio, Esq.
Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP
399 Park Avenue
25th Floor
New York, NY 10022-4877
RE: Request for reconsideration of NY F82010; NY F80765; NY C87894 and; NY C87245; mesh debris netting. Dear Mr. Desiderio:
This letter is in response to your request of April 14, 2006 and supplemental request of April 21, 2006, on behalf of your client Strong Man Building Products Corp., for reconsideration of New York Ruling Letters (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, as it pertains to the classification of mesh debris netting products under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).
Consideration was given to the July 13, 2006 telephone conference held between your counsel and members of my staff as well as your additional submission dated July 18, 2006, in reaching our decision herein.
FACTS:
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.
ISSUE:
Whether the mesh debris netting products are classified in heading 6005, HTSUSA, as warp knit fabrics or in heading 6307, HTSUSA, as made up articles.
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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), constitute the official interpretation at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. It is Customs and Border Protections’ (CBP) practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUSA. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
You argue that the products 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:
(a) 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 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 assert that the mesh debris netting products meet the definition of “made up” as set forth in Note 7(b), as the products are produced in the finished state and are ready for use in their condition as imported.
The ENs to Section XI, Note 7(b), are set forth in the General Notes, Section XI, (II) Chapters 56 to 63, and provide in relevant part as follows:
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.
You cite to HQ 083587, dated May 2, 1989, regarding the classification of liners used in tire manufacturing, as support for the claim that the subject merchandise qualifies as made-up. In HQ 083587, polyethylene liners in the size and shape of finished products as they came off the loom, but requiring two manufacturing processes, heat setting and heat sealing the edges to prevent fraying, were classified as made up articles. HQ 083587 is distinguishable from the subject merchandise. The liners which were the subject of HQ 083587 came off the loom in the size ready for use in the condition as imported and were never cut. Although you state that the subject merchandise is "ready to use in its condition upon importation," under the first scenario, you also state that the subject mesh netting product must be cut from the master roll to the desired length. Under the second scenario, the mesh netting products will come off the loom in a specified length of 150 feet or 300 feet, however, it is still not ready to use in its condition as imported as the purchaser of the products will most often need to cut the mesh netting product to a length, other than 150 feet or 300 feet, needed for the job. As such, they are not produced in the finished state.
HOLDING:
By application of GRI 1, the mesh netting products are classified in heading 6005, HTSUSA. They are 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.” The general column one rate of duty is 10% ad valorem.
Merchandise classified in subheading 6005.33.0010, HTSUSA, falls within textile category 229. 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 negotiations 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 cite 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 cite of the Office of Textiles and Apparel of the Department of Commerce at http://otexa.ita.doc.gov.
EFFECT ON OTHER RULINGS:
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.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division