CLA-2 CO:R:C:T 950227 HP
Mr. Daniel C. Holland
District Director c/o
U.S. Customs Service
ATTN: Protest Reviewer
9901 Pacific Highway
Blaine, WA 98230
RE: Further review of protest no. 30041-000159. Polyester yarn
not found to be high tenacity by Customs Laboratory is classified
as other yarn.
Dear Mr. Holland:
This is in reply to your memorandum attaching a request for
further review of Protest 30041-000159 of July 3, 1991. Please
reference your file PRO-2-O:C MM:slj.
FACTS:
The merchandise at issue consists of single ply polyester
filament yarn from Canada. The merchandise was liquidated under
subheading 5402.43.0020, Harmonized Tariff Schedule of the United
States Annotated (HTSUSA), as other polyester yarns. We there-
fore assume, for purposes of this ruling, that the yarn is either
monofilament or multifilament, untwisted or with a twist of less
than five turns per meter. Protestant, xxxx xxxxxx xxxxxxx,
claims that the polyester yarn is a high tenacity yarn, and
therefore classifiable in subheading 5402.20.3040. This provi-
sion allows a Free rate of duty under the U.S. Canada Free Trade
Agreement.
ISSUE:
Whether the instant yarn is considered high tenacity under
the HTSUSA?
LAW AND ANALYSIS:
The General Rules of Interpretation (GRIs) to the HTSUSA
govern the classification of goods in the tariff schedule. GRI 1
states, in pertinent part, that:
... classification shall be determined
according to the terms of the headings and
any relative section or chapter notes ...
Goods which cannot be classified in accordance with GRI 1 are to
be classified in accordance with subsequent GRIs, taken in order.
Note 6 to Section XI, HTSUSA defines high tenacity yarn as:
yarn having a tenacity, expressed in cN/tex
(centinewtons per tex), greater than the
following:
Single yarn of nylon or other
polyamides, or of polyesters. . . . . . .60 cN/tex
Multiple (folded) or cabled yarn of
nylon or other polyamides, or of
polyesters. . . . . . . . . . . . . . . .53 cN/tex
Single, multiple (folded) or cabled
yarn of viscose rayon . . . . . . . . . 27 cN/tex.
Upon entry, a sample of the yarn was sent to our San Fran-
cisco office for analysis. Report 8-91-10121-001 states that:
According to the New York Laboratory, the
sample is a single ply polyester filament
yarn. It does not meet the requirements for
high tenacity specified in HTSUS Section XI,
Note 6.
Protestant disagreed with this conclusion, and submitted the
Celanese Canada Inc. (the manufacturer of the yarn) product
literature stating that the typical physical properties of
Fortrel~ Type 800 polyester included a tenacity of 7.9 dN/tex
(equal to 79 cN/tex). Based upon this discrepancy, our New York
Laboratory re-tested the yarn, stating:
[t]he sample was tested on a Thwing-Albert
Electronic Tensile Tester (Model Number QCII-
XS) using ASTM method number D885.
The sample was found to have a tenacity of
44.52 [cN/tex] and does not meet the
requirements for high tenacity specified in
HTSUS Section XI, Note 6.
It is a well accepted principle of Customs legal analysis
that merchandise is classified using its condition as imported.
While it may be possible that, at the time of literature develop-
ment, Celenese's testing showed a tenacity of 79 dN/tex, Customs
Laboratory analysis of the merchandise as imported is control-
ling. The Protest should therefore be Denied in Full.
HOLDING:
As a result of the foregoing, the merchandise is classified
under subheading 5402.43.0020, HTSUSA, as synthetic filament yarn
(other than sewing thread), not put up for retail sale, including
synthetic monofilament of less than 67 decitex, other yarn,
single, untwisted or with a twist not exceeding 50 turns/m, of
polyesters, other, monofilament; multifilament, untwisted or with
a twist of less than 5 turns per meter. Articles which meet the
definition of "goods originating in the territory of Canada" (see
General Note 3(c)(vii)(B), HTSUSA) are subject to reduced rates
of duty under the United States-Canada Free Trade Agreement
Implementation Act of 1988. If the merchandise constitutes
"goods originating in the territory of Canada," At the date of
entry, the applicable rate of duty was 8 percent ad valorem.
Since the rate of duty under the classification listed above
is the same as the liquidated rate, you are instructed to deny
the protest in full. A copy of this decision should be attached
to the Form 19 Notice of Action.
A copy of this ruling letter should be attached to the entry
documents filed at the time this merchandise is imported. If the
documents have been filed without a copy, this ruling should be
brought to the attention of the Customs officer handling the
transaction.
Sincerely,
John Durant, Director
Commercial Rulings Division