CLA-2 RR:TC:TE 959132 jb
Robert A. Calandra, Esq.
Sandler, Travis & Rosenberg, P.A.
505 Park Avenue
New York, NY 10022-1106
RE: Classification of a geotextile; Note 7 to Section XI; not
made-up
Dear Mr. Calandra:
This is in response to your letter, dated February 23, 1996,
on behalf of your client, Polybarq, C.A., requesting
classification under the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA) of a geotextile. A sample was
submitted to this office for examination.
FACTS:
The submitted sample, a geotextile, is composed of 100
percent polypropylene strip which measures approximately two to
three millimeters in diameter. It contains approximately 16
strips per inch in the warp and 12 strips per inch in the
filling. You state this product will be manufactured in widths
varying between 110 and 210 inches and will be imported in 100 to
1500 yard lengths. Every three to six feet close to the selvage,
a punch will stamp a 270 degree hole with a diameter of
approximately 3/4 inches into the fabric.
You state that the geotextiles may be used for sedimentation
control, site drainage, soil reinforcement, roadway construction
and repair, and erosion control. It is stated that the holes
punched into the fabric function as unreinforced grommets and
will enable users to secure the geotextile products to the
ground, to other geotextile products, to thread a rope, or for
other uses.
In your opinion the geotextiles are classified in heading
6307, HTSUS, as other made up textile articles. This is based on
the belief that the merchandise is a made up article due to your
view that:
1. the tucked-in selvage is considered a hem;
2. the merchandise is produced in the finished state;
3. the merchandise is further worked.
ISSUE:
Whether the subject merchandise is properly classified in
heading 6307, HTSUS, as an other made up article or in heading
5407, HTSUS, as a woven fabric of synthetic filament yarn,
including woven fabrics obtained from materials of heading 5404,
HTSUS?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff
Schedule of the United States Annotated (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 and any relative section or chapter notes, taken in
order. Merchandise that cannot be classified in accordance with
GRI 1 is to be classified in accordance with subsequent GRI.
Heading 6307, HTSUS, provides for other made up articles.
Note 7 to Section XI states that the expression "made up" means:
(a) Cut otherwise than into squares or rectangles;
(b) 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);
(c) 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 unraveling by whipping
or by other simple means;
* * *
You assert that as the tucked in selvage serves a dual
purpose, that is, preventing the edges from unraveling and
securing the edge of the geotextile, the subject merchandise
should be considered a hem, as per Note 7(c). We disagree.
Shuttleless looms have become very common in the industry; these
looms routinely produce a tucked-in selvage as the fabric is
being woven to prevent the unraveling of the fabric. As such,
once the fabric comes off the loom, no additional operation is
required to secure the selvage. It is our opinion that this
exemplifies the "fabrics the cut edges of which have been
prevented from unraveling by simple means", as excepted by Note
7(c).
Additionally, it should be noted that even if we were to
consider the tucked-in selvage akin to a hem, the tucked-in
selvage would not feature what this office has consistently
determined to be the requisite properties of a hem. It has been
the position of this office, through a series of rulings, that
for a piece good to be considered "made up", the hem must
dedicate the fabric to a particular use. In Headquarters Ruling
Letter (HQ) 083013, dated March 20, 1989, merchandise consisting
of irrigation dam material, made up of woven man-made fiber
strips, coated with 0.04 mm of orange polyethelene plastics which
could be seen with the naked eye, and featuring a lengthwise edge
folded over itself and hemmed to create an 8 inch pocket along
the entire length of the fabric, was determined to meet the
criteria for "made up". The rationale was based on the fact that
the hemming along the entire length of the fabric served a
utilitarian purpose, that is, it created a pocket which allowed
the insertion of a 2 inch by 4 inch piece of wood to hold the dam
in place. On the other hand, in HQ 084144, dated July 19, 1989,
a nylon woven fabric used for the manufacture of umbrellas,
imported in material lengths and hemmed to prevent unraveling,
was determined not to be "made up". The rationale was based on
the fact that the hem did not serve a utilitarian purpose and did
not dedicate the fabric for a particular use.
Similarly, in the case of the subject geotextile, the tucked-in
selvage merely prevents the unraveling of the merchandise and
does not otherwise dedicate the fabric to a particular use.
You also assert that, as per the definition of made up in
Note 7(b), the geotextiles are produced in the finished state,
ready for use, because after importation no further cutting or
processing will take place. Furthermore, you state that the
punching of holes along the length renders the geotextiles
"further worked" as they are not simply cut out from larger
pieces. You refer 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 can easily be distinguished from the subject merchandise.
As you correctly noted, the liners which were the subject of HQ
083587 came off the loom in the size ready for use. We are not
convinced that this is the case with the subject merchandise.
Although you state that the subject merchandise is "produced in
the finished state, ready for use", and that no further cutting
or processing will occur after importation, no documentation was
submitted to support this claim. This type of material,
imported on rolls is generally cut to the appropriate size needed
for use.
The Explanatory Notes to the Harmonized Commodity
Description and Coding System to chapters 56-63, HTSUS, in
defining made up articles, state, in pertinent part:
However, rectangular (including square) articles simply cut
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.
* * *
It has been the opinion of this office that for merchandise
to qualify as "further worked" the processing that is done on the
merchandise must serve a functional purpose. In the merchandise
that was the subject of HQ 083587, the material was not only
undoubtedly produced in the finished state but was also further
worked through heat setting and heat sealing to prevent fraying
of the merchandise. You state that the holes which have been cut
into the subject merchandise function as unreinforced grommets,
enabling users to secure the geotextile product to the ground or
to other geotextile products, or to thread a rope. We do not
agree. Many processes are done on materials which do not qualify
them as made up articles. For example, burnt out lace remains
classified as material even though portions of the fabric are cut
or burnt away. After a thorough examination of the holes
punched into the subject merchandise, it is our belief that these
holes are not functional. Although you refer to these holes as
unreinforced grommets used to secure the merchandise to other
geotextile merchandise or other fasteners, when we tugged at the
holes slightly, they began to rip. It would thus appear to us
that any other significant force applied to these holes, as would
be the case with the uses contemplated for this merchandise,
i.e., sedimentation control, site drainage, roadway construction
and repair, etc., would tear this merchandise and defeat its
intended purpose or use. As such, we cannot deduce any
functional use for these holes. Accordingly, as this
merchandise does not meet the requisite criteria for "made up",
as per Note 7, the subject merchandise is excepted from
classification as an other made up article in heading 6307,
HTSUS.
Heading 5407, HTSUS, provides for woven fabrics of synthetic
filament yarn, including woven fabrics obtained from materials of
heading 5404, HTSUS. The subject merchandise is properly
classified in subheading 5407.20.0000, HTSUSA, which provides
for, woven fabrics of synthetic filament yarn, including woven
fabrics obtained from materials of heading 5404: woven fabrics
obtained from strip or the like.
HOLDING:
The subject merchandise is classified in subheading
5407.20.0000, which provides for, woven fabrics of synthetic
filament yarn, including woven fabrics obtained from materials of
heading 5404: woven fabrics obtained from strip or the like. The
applicable rate of duty is 13.6 percent ad valorem and the quota
category is 620.
The designated textile and apparel category may be
subdivided into parts. If so, visa and quota requirements
applicable to the subject merchandise may be affected. Since
part categories are the result of international bilateral
agreements which are subject to frequent renegotiations and
changes, to obtain the most current information available, we
suggest that your client check, close to the time of shipment,
the Status on Current Import Quotas (Restraint Levels) an
issuance of the U.S. Customs Service, which is updated weekly and
is available at the local Customs office.
Due to the changeable nature of the statistical annotation
(the ninth and tenth digits of the classification) and the
restraint (quota/visa) categories, your client should contact the
local Customs office prior to importing the merchandise to
determine the current applicability of any import restraints or
requirements.
Sincerely,
John Durant, Director
Tariff Classification Appeals
Division