CLA-2 CO:R:C:T 950919 CRS
Harry G. Kelly, Esq.
Givens and Kelly
950 Echo Lane
Suite 360
Houston, TX 77024-2788
RE: Woven polypropylene bag; plastic strip; heading 5404; EN
54.04; apparent width; average width; EN 46.02; Note 1(g), Note
1(h), Section XI.
Dear Mr. Kelly:
This is in reply to your letter of December 4, 1991, to our
New York office, on behalf of Mitsui Plastics, Inc., concerning
the tariff classification of a woven polypropylene bag under the
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA). A sample of the bag was submitted for our examination.
FACTS:
The article in question is a sack or bag manufactured in the
Republic of Korea. The bag is made from woven polypropylene
strip fabric that is coated on one side with plastics. The
individual warp and weft strips from which the bag is woven are
5.6 mm wide; however, the weft strips are compressed due to
crumbling and folding in the weaving process with the result that
approximately 70 percent of the weft strips appear to measure
less than 5 mm in width. The actual width of the warp and weft
strips nevertheless remains 5.6 mm at all times. The finished
bag is 33 inches long, 15 inches wide, is open at one end. A
cotton filler cord is used to sew the bottom closure. The bag
is used to transport grain, plastic granules and similar
products.
ISSUE:
The issue presented is whether the warp and weft strips that
comprise the instant bag have an apparent width greater than 5 mm
such that the bag is classifiable under a provision for articles
of plaiting material, or whether it is instead classifiable under
a provision for sacks and bags of a kind used for the packing of
goods.
LAW AND ANALYSIS:
Two headings are potentially relevant for the purposes of
this ruling: heading 4602, HTSUSA, which provides, inter alia,
for articles made directly to shape from plaiting materials or
made up from articles of heading 4601; and heading 6305, HTSUSA,
which covers sacks and bags (made from textile materials) of a
kind used for the packing of goods.
It is your contention that the instant bag is excluded from
classification as a textile (Section XI), pursuant to Note 1(g),
Section XI, on the grounds that it is "made preponderantly (over
75%) of nontextile plastics materials. Moreover, since the bag
is coated on one side with plastics, you have argued that Note
1(h), Section XI, also operates to preclude classification as an
article of textiles. On this basis you contend that the instant
bag should be classified as an article of plaiting materials of
heading 4602. We disagree.
As used in Chapter 46, the expression "plaiting materials"
includes plastic strip, but not strip of Chapter 54 (man-made
filaments). Note 1, Chapter 46, HTSUSA. The official
interpretation of the Harmonized System at the international
level is embodied in the Explanatory Notes. While not legally
binding, General Explanatory Note, Chapter 46, states that the
Chapter includes articles made from:
(3) [S]trip and the like of plastics of Chapter 39
(but not...strip or the like of an apparent width
not exceeding 5 mm, of man-made textile materials,
of Chapter 54). (Emphasis in original).
Thus in order for an article of strip to be classified in heading
4602, it must be made from strip of Chapter 39, i.e., strip that
exceeds 5 mm in width. Subnote (ii) to General Explanatory Note
also provides that articles made from strip with an apparent
width not exceeding 5 mm are excluded from Chapter 46.
The bag in question is made from plastic strip that exceeds
5 mm in the warp, but measures less than 5 mm in the weft due to
the twisting and folding that occurs during the weaving process.
However, if the actual or apparent width of strip is not uniform,
classification is determined with regard to average width. (EN)
54.04(2)(iii), 754. Based on a Customs Headquarters laboratory
report, the average width of the weft strips is 4.1 mm. The warp
strips are 5.6 mm wide. Weighting the warp and the weft strips
by the number of single strips per five centimeters (since the
former are more numerous), yields an average overall width of the
strips comprising the bag of 4.9 mm. On this basis, the bag is
not classifiable as an article of plaiting materials, since the
strip from which the bag is made is itself not classifiable as
plastics material of Chapter 39.
Section XI, HTSUSA, covers textiles and textile articles.
You contend that the instant bag is excluded from Section XI by
Note 1(g), Section XI. Note 1(g) excludes strip with an apparent
width greater than 5 mm from the textile provisions of the
tariff. Strip not exceeding 5 mm is classifiable in Section XI,
specifically in heading 5404, HTSUSA, which provides, inter alia,
for strip and the like of synthetic textile materials. Since the
bag is made from strip with an average width of less than 5 mm,
Note 1(g) does not exclude it from Section XI.
Similarly, Note 1(h), which you contend excludes the instant
merchandise from Section XI, excludes only coated fabrics of
Chapter 39 from Section XI. Such fabrics must be coated on both
sides with a plastics coating that is visible to the naked eye.
The fabric used to make the article in question is coated on only
one side with a plastic coating that cannot be seen by the naked
eye. Consequently, it is not excluded from Section XI by virtue
of Note 1(h).
Accordingly, since the bag is not excluded from Section XI
and since the average width is less than 5 mm, the sample bag is
a textile article classifiable in heading 6305, HTSUSA.
HOLDING:
The bag at issue is classifiable in subheading 6305.31.0020,
HTSUSA, under the provision for sacks and bags, of a kind used
for the packing of goods: of man-made textile materials: of
polyethylene or polypropylene strip or the like: other. It is
dutiable at the rate of 9.5 percent ad valorem and is subject to
textile category 669.
The designated textile category may be subdivided into
parts. If so, visa and quota requirements applicable to the
subject merchandise may be affected. Part categories are the
result of international bilateral agreements which are subject to
frequent renegotiations and changes. In order to obtain the
most current information available on part categories, we suggest
that you check, close to the time of shipment, the Status Report
on Current Import Quotas (Restraint Levels), an internal issuance
of the U.S. Customs Service, which is available for inspection at
your 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, you should contact your local
Customs office prior to importation of this merchandise to
determine the current status of any import restraints or
requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division