CLA-2 CO:R:C:T 953541 HP
Mr. Dennis Murphy
District Director
U.S. Customs Service
101 East Main Street
Norfolk, VA 23510
RE: Application for further review of Protest # 1401-92-100172.
Flax waste and tow.
Dear Mr. Murphy:
This is in reply to your memorandum of February 26, 1993,
transmitting Customs Form 19 and related papers for further
review of Protest # 1401-92-100172. Please reference your file
PRO-2-ADD:CO:E.
FACTS:
The merchandise at issue is described in Customs Laboratory
Report No. 4-92-10315-001 of January 28, 1992, as "unbleached
flax tow, processed but not spun. In our opinion, the sample is
waste obtained from the hackling operation." Customs Laboratory
Report No. 4-93-10341-001 of December 22, 1992, supplementing
Report No. 4-92-10315-001, stated that "the average fiber length
of the sample is 3.9 centimeters."
The merchandise was entered under subheading 5301.29,
HTSUSA, as hackled or otherwise processed, but not spun, flax.
Protestant argues that classification under subheading 5301.30,
HTSUSA, as flax tow or waste, is more appropriate.
ISSUE:
Whether the merchandise is considered tow or waste under the
HTSUSA?
LAW AND ANALYSIS:
Subheading 5301.30, HTSUSA, provides for flax tow or waste,
including yarn waste and garnetted stock. The Explanatory Notes
(EN) to the Harmonized Commodity Description and Coding System
(Harmonized System) constitute the official interpretation of the
scope and content of the tariff at the international level. They
represent the considered views of classification experts of the
Harmonized System Committee. Totes, Inc. v. United States, No.
91-09-00714, slip op. 92-153, 14 Int'l Trade Rep. (BNA) 1916,
1992 Ct. Intl. Trade LEXIS 158 (Ct. Int'l Trade 1992). While not
treated as dispositive, the EN are to be given considerable
weight in Customs' interpretation of the HTSUSA. Boast, Inc. v.
United States, No. 91-11-00793, slip op. 93-20, 1993 Ct. Intl.
Trade LEXIS 19 (Ct. Int'l Trade 1993). It has therefore been the
practice of the Customs Service to follow, whenever possible, the
terms of the Explanatory Notes when interpreting the HTSUSA.
The EN to this heading, at 742, defines flax tow and waste
as:
consist[ing] generally of flax wastes of
differing qualities suitable for spinning; it
consists mainly of short, knotted, broken or
tangled fibres obtained during the various
processes such as scutching, hackling
(coming) and spinning.
The heading also covers yarn waste
obtained during the spinning, reeling or
weaving operations, and waste fibres obtained
by tearing up waste pieces of fabric or made
up articles into their constituent fibres;
these are generally intended for re-spinning
into yarns.
In view of the shortness of their
component fibres, tow and other waste
intended for spinning are usually carded and
not hackled (combed). The slivers and
rovings obtained after carding are also
covered by this heading.
This heading also covers waste
unsuitable for spinning into yarns, mainly
obtained from the scutching or carding
operations, and used as padding or stuffing,
as a binding in mortars, or as raw material
in the manufacture of certain kinds of paper.
Counsel for the protestant states that "[i]n its condition as
imported, this merchandise is unsuitable for spinning into flax
yarn by itself. Rather, it is used in small percentages with
other fibers in order to produce blended yarns." Based upon
this, counsel argues that classification as flax tow and waste is
appropriate. We agree. The description of the merchandise in
the original and supplementary laboratory reports, its inability
to be spun into yarns by itself, as well as its intended use,
clearly reflect the above-cited Explanatory Note. Accordingly,
classification under subheading 5301.30, HTSUSA, is correct.
HOLDING:
As a result of the foregoing, the instant merchandise is
classifiable under subheading 5301.30.0000, HTSUSA, as flax tow
and waste. The applicable rate of duty is Free. Since re-
classification of the merchandise as indicated above would result
in a lower rate of duty than the liquidated rate, you are
instructed to Grant the protest in full. A copy of this decision
should be forwarded to the protestant, or protestant's counsel,
as part of the 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