CLA-2 CO:R:C:T 955258 ch
District Director
U.S. Customs Service
4430 East Adamo Drive
Suite 301
Tampa, Florida 33605
RE: Application for further review of Protest No. 1801-93-
100040 under 19 U.S.C., section 1514(c)(2);
classification of fibrillated polypropylene strip; man-
made fiber; 10,000 decitex; not twine, cordage, ropes
and cables.
Dear Sir:
This is a decision on application for further review of a
protest timely filed by James R. Cahill on behalf of Cahill
Customs Consulting, Inc. We have considered the protest and our
decision follows.
FACTS:
The submitted sample is a single twisted fibrillated 100
percent polypropylene strip imported from Guatemala. The
protestant states that the strip measures approximately 9,000
decitex and has a twist of 36 turns per meter. It is
approximately 3 mm in apparent width (i.e. diameter).
The strip is manufactured by melting polypropylene pellets
and extruding it into a flat sheet, which is stretched and wound
on bobbins. The sheet is then twisted into its final form.
The merchandise was liquidated under subheading
5402.51.0000, Harmonized Tariff Schedule of the United States
Annotated (HTSUSA), which provides for synthetic filament yarn,
with a twist exceeding 50 turns/meter, of nylon or other
polyamides. The claimed classification is subheading
5607.49.1000, which provides for twine, cordage, ropes and
cables, of polyethylene or polypropylene, of wide nonfibrillated
strip.
ISSUE:
What is the proper tariff classification for the fibrillated
polypropylene strip?
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRI). GRI 1 provides that
classification is determined first in accordance with the terms
of the headings of the tariff and any relative section or chapter
notes. Where goods cannot be classified on the basis of GRI 1,
the remaining GRI will be applied in order.
Section XI, Chapter 54, HTSUSA, provides for man-made
filaments. Within Chapter 54, Heading 5404 provides for
synthetic monofilament of 67 decitex or more and of which no
cross-sectional dimension exceeds 1 mm. It also provides for
strip and the like of synthetic textile materials of an apparent
width not exceeding 5 mm. The fact that strip of Heading 5404
appears in the Chapter providing for man-made filaments suggests
that it may be regarded as a type of filament. This
interpretation is supported by Heading 5407, which encompasses
woven fabrics of synthetic filament. Heading 5407 specifies that
it includes woven fabrics obtained from materials of heading
5404. One such material is synthetic strip. Therefore, we
conclude that strip of Heading 5404 is a filament for tariff
purposes.
The Explanatory Note (EN) to Heading 5404, at page 754,
reads in pertinent part as follows:
(1) Synthetic monofilament. These are filaments
extruded as single filaments. They are classified here
only if they measure 67 decitex or more and do not
exceed 1 mm in any cross-sectional dimension.
Monofilaments of this heading may be of any cross-
sectional configuration and may be obtained not only by
extrusion but by lamination or fusion.
(2) Strip and the like, of synthetic textile
materials. The strips of this heading are flat, of a
width not exceeding 5 mm, either produced as such by
extrusion or cut from wider strips or from sheets.
Provided their apparent width (i.e., in the folded,
flattened, compressed or twisted state) does not exceed
5 mm, this heading also covers:
(i) Strip folded along the length.
(ii) Flattened tubes, whether or not folded along the
length.
(iii) Strip, and articles referred to in (i) and (ii)
above, compressed or twisted. (Emphasis added).
This passage suggests that monofilament of Heading 5404 may
generally be of any cross-sectional shape. However, strip of
Heading 5404 must be flat and must be of an apparent width of 5
mm or less. Moreover, strip may be produced by extrusion. The
fact that strip has been twisted does not affect its
classification in Heading 5404. In this instance, the
merchandise satisfies the specified criteria for strip. It has
been produced by extrusion and is less than 5 mm in apparent
width. Before twisting the product is flat. Accordingly, it is
classifiable as strip of Heading 5404.
The strip was liquidated in Heading 5402, HTSUSA, which
provides for synthetic filament yarn, not put up for retail sale,
including synthetic monofilament of less than 67 decitex. The EN
to Heading 5402 states in part that:
This heading covers synthetic filament yarn (other than
sewing thread). It includes:
(1) Monofilament (monofil) of less than 67 decitex.
(2) Multifilament obtained by grouping together a
number of monofilaments (varying from two filaments to
several hundred) generally as they emerge from the
spinnerets.
Thus, Heading 5402 encompasses both monofilament and
multifilament. As noted above, strip of Heading 5404 is a type
of filament. In this case, the strip is not multifilament as it
has not been grouped together with other strip. Although it may
be viewed as a monofilament, it is more than 67 decitex and is
therefore not within the scope of Heading 5402. In addition, the
provision for strip within Heading 5404 describes the merchandise
more specifically than does Heading 5402, which provides
generally for synthetic filament yarn. For these reasons, we
find that the instant product is not classifiable in Heading
5402.
Protestant claims that the subject merchandise is properly
classified in Chapter 56, Heading 5607, HTSUSA, which describes
twine, cordage, ropes and cables. Section XI, Note 3(A),
provides in pertinent part that:
For the purposes of this section, and subject to the
exception in paragraph (B) below, yarns (single,
multiple (folded) or cabled) of the following
descriptions are to be treated as "twine, cordage,
ropes and cables":
* * *
(b) Of man-made fibers (including yarn of two or
more monofilaments of chapter 54), measuring
more than 10,000 decitex.
The legal note states that man-made fibers measuring more than
10,000 decitex are to be treated as twine, cordage, ropes and
cables of Heading 5607, HTSUSA. In addition, the General
Explanatory Note (EN) to section XI, part I(B)(2), at page 708,
contains a table which pertains to the classification of yarns,
twine, cordage, rope and cables of textile material. This table
also indicates that man-made fibers measuring more than 10,000
decitex are classified as twine, cordage, ropes and cables of
heading 5607, HTSUSA. Therefore, if the instant strip is a man-
made fiber it will be classified in Heading 5607 only if it
measures more than 10,000 decitex.
Chapter 54, Note 1, HTSUSA, reads in pertinent part as
follows:
Throughout the tariff schedule, the term "man-made
fibers" means staple fibers and filaments of organic
polymers produced by manufacturing processes, either:
(a) By polymerization of organic monomers, such as
polyamides, polyesters, polyurethanes or polyvinyl
derivatives;
* * *
The terms "synthetic" and "artificial", used in
relation to fibers, mean: synthetic: fibers as
defined at (a). (Emphasis added).
In addition, the General EN to Chapter 54, at page 749,
states in part that:
Under Note 1 to Chapter 54, the term "man-made fibres,"
when used in Chapters 54 and 55 or elsewhere in the
Nomenclature, means filaments or staple fibres composed
of organic polymers produced by manufacturing
processes, either by:
(1) Polymerisation (see the General Explanatory Note
to Chapter 39) of organic monomers (synthetic fibres).
(Emphasis added).
Taken together, the legal and explanatory notes indicate that for
tariff purposes man-made fibers include synthetic fibers and
filaments. Furthermore, the General Explanatory Note (EN) to
Chapter 54, at page 749, provides that a polypropylene filament
is a type of synthetic filament. Therefore, polypropylene
filaments are man-made fibers.
In this instance, the submitted sample is polypropylene
strip measuring less than 10,000 decitex. As strip of Heading
5404 is a type of filament, the instant strip is a man-made
fiber. Pursuant to Section XI, Note 3(A), and the General EN to
Section XI, man-made fibers measuring less than 10,000 decitex
are not classifiable as twine, cordage, ropes and cables of
Heading 5607. As the instant strip measures less than 10,000
decitex, it cannot be classified within Heading 5607.
Protestant resists this finding on several grounds. First,
our attention is directed to the General EN to Section XI, which
states, at pages 705 and 707, that Chapters 50 to 55, HTSUSA, are
reserved generally for raw materials such as yarns. Protestant
contends the instant strip is not a raw material and therefore
cannot be classified in Chapter 54. However, the General EN to
Section XI, at page 707, states that yarns include filaments of
Headings 5402 through 5405. As we have previously established
that strip of Heading 5404 is a type of filament, it is a yarn
for tariff purposes.
Second, protestant observes that generally Chapters 50 to 55
exclude products that are "made up," as that term is defined in
Note 7 to Section XI, HTSUSA. Specifically, Section XI, Note 8
states:
Chapters 50 to 55 and, except where the context
otherwise requires, chapters 56 to 60, do not apply to
goods made up within the meaning of note 7 above.
Chapters 50 to 55 do not apply to goods of chapters 56
to 59.
Protestant argues that the strip is made up pursuant to Section
XI, Note 7(b), which states that "made up" includes products
produced in a finished state, ready for use. As the strip will
not be further processed after importation, protestant reasons
that it is excluded from Chapter 54.
Note 7(b) to Section XI sets forth examples of products
which are "made up" in the sense that they are ready for use:
dusters, towels, tablecloths, scarf squares, blankets. These
exemplars are lengths of fabric suitable for direct use as
articles. In this case, the strip is not imported as a fabric
suitable for direct use. Rather, it is in the form of a yarn.
For this reason, we conclude that the strip is not "made up"
under the terms of Section XI, Note 7(b).
Third, protestant refers to the table found in the General
EN to Section XI, at page 708. As previously noted, this table
indicates that only man-made fibers measuring over 10,000 decitex
are classifiable in Heading 5607. Protestant urges us to
disregard the information contained in the table. However, the
10,000 decitex standard for man-made fibers is codified as Note
3(A)(b), Section XI. Therefore, it is binding legal authority.
Finally, protestant has submitted several of our prior
rulings, as well as Treasury Decision 85-183, which indicate that
fibrillated polypropylene strip has been classified as twine or
cordage in the past. We recognize that polypropylene strip may
be classified in Heading 5607, HTSUSA. However, pursuant to the
foregoing legal and explanatory notes, man-made fibers must
measure over 10,000 decitex in order to qualify for such
treatment.
HOLDING:
Based on the foregoing discussion, the subject merchandise
is classifiable in Subheading 5404.90.0000, HTSUSA, which
provides for synthetic monofilament of 67 decitex or more and of
which no cross-sectional dimension exceeds 1 mm; strip and the
like (for example, artificial straw) of synthetic textile
materials of an apparent width not exceeding 5 mm: other. The
applicable rate of duty for such goods which are the product of
Guatemala is Free under the Generalized System of Preferences.
Since re-classification of the merchandise as indicated
above will result in the same rate of duty as claimed you are
instructed to allow the protest in full.
In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed by your office to the
protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with the decision
must be accomplished prior to mailing of the decision. Sixty
days from the date of the decision the Office of Regulations and
Rulings will take steps to make the decision available to Customs
personnel via the Customs Rulings Module in ACS and the public
via the Diskette Subscription Service, Lexis, Freedom of
Information Act and other public access channels.
Sincerely,
John A. Durant, Director