CLA-2 CO:R:C:T 952573 CC
Harry G. Kelly, Esq.
Givens and Kelly
950 Echo Lane
Suite 360
Houston, TX 77024-2788
RE: Reconsideration and Revocation of HRL 950919; classification
of a woven polypropylene bag
Dear Mr. Kelly:
This letter is in response to your request, on behalf of
Mitsui Plastics, Inc., for reconsideration of Headquarters Ruling
Letter (HRL) 950919, which concerned the classification of a
woven polypropylene bag. A sample was available for examination.
In HRL 950919, dated April 8, 1992, we ruled that the subject
merchandise is classified in Heading 6305 of the Harmonized
Tariff Schedule of the United States Annotated (HTSUSA), which
provides for sacks and bags, of a kind used for the packing of
goods. We have reviewed that ruling and have found it to be in
error. The correct classification follows.
Pursuant to section 625, Tariff Act of 1930 (19 U.S.C.
1625), as amended by section 623 of Title VI (Customs
Modernization) of the North American Free Trade Agreement
Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993)
(hereinafter section 625), notice of the proposed revocation was
published on March 16, 1994, in the Customs Bulletin, Volume 28,
Number 11.
FACTS:
You contend that the correct classification for this
merchandise is in Heading 4602, HTSUSA, which provides for
basketwork, wickerwork and other articles, made directly to shape
from plaiting materials or made up from articles of Heading 4601.
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, and 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.
According to your submissions, the weight of the components
of the bag is the following:
Warp strip, over 5 mm..........................36.50 gm
Weft strip, over 5 mm..........................10.95 gm
Weft strip, not over 5 mm......................25.55 gm
Polypropylene coating..........................37.00 gm
Polypropylene adhesive..........................3.00 gm
Bottom sewing thread............................0.70 gm
Cotton filler cord..............................0.66 gm
Total.........................................114.36 gm
ISSUE:
Whether the merchandise at issue is classifiable in Heading
3923, HTSUSA, Heading 4602, HTSUSA, or Heading 6305, HTSUSA?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is in
accordance with the General Rules of Interpretation (GRI's),
taken in order. GRI 1 provides that classification shall be
determined according to the terms of the headings and any
relative section or chapter notes.
There are three relevant headings for classification of the
merchandise at issue: Heading 4602, Heading 6305, and Heading
3923, HTSUSA.
Note 2(ij) to Chapter 39, HTSUSA, specifically precludes
plaits, wickerwork or other articles of Chapter 46 from coverage
by Chapter 39. Therefore if the merchandise at issue is
considered made of plaits, it is excluded from classification as
an article of plastics of Chapter 39. Note 1(h) to Section XI,
HTSUSA, states that Section XI does not cover woven, knitted or
crocheted fabrics, felt or nonwovens, impregnated, coated,
covered or laminated with plastics, or articles thereof, of
chapter 39. In HRL 950919 we stated the following concerning
whether the merchandise at issue is classifiable as an article of
plastics:
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).
If considered made of textile material, therefore, this
merchandise is not excluded from Section XI by the plastics
application. Consequently the merchandise at issue is not
classifiable in Chapter 39.
Note 1(g) to Section XI, provides that Section XI does not
cover the following:
Monofilament of which any cross-sectional
dimension exceeds 1 mm or strip or the like (for
example, artificial straw) of an apparent width
exceeding 5 mm, of plastics (chapter 39), or plaits or
fabrics or other basketware or wickerwork of such
monofilament or strip (chapter 46).
Note 1 to Chapter 46, HTSUSA, provides the following:
In this chapter the expression "plaiting
materials" means materials in a state or form suitable
for plaiting, interlacing or similar processes; it
includes ... monofilament and strip and the like of
plastics ... but not ... monofilament and strip and the
like of chapter 54.
Subnote (ii) to Chapter 46 of the Harmonized Commodity
Description and Coding System, Explanatory Notes, the official
interpretation of the nomenclature at the international level, at
page 651, states that the following is not considered plaiting
materials of Chapter 46:
Monofilament of which no cross-sectional dimension
exceeds 1 mm, or strip or flattened tubes (including
strip and flattened tubes folded along the length),
whether or not compressed or twisted (artificial straw
and the like), of man-made textile materials, provided
that the apparent width (i.e., in the folded,
flattened, compressed or twisted state) does not exceed
5 mm (Section XI).
Thus in order for the merchandise at issue to be
classifiable in Heading 4602, it must be made of strip exceeding
5 millimeters in width. If it is made of strip under 5
millimeters in width, it is classifiable in Section XI.
In HRL 950919 we ruled that the bags at issue were
classified in Heading 6305. We stated that due to the twisting
and folding of the strips in the weft, EN 5404(2)(iii) at page
754 was applicable, which states that if the actual or apparent
width of strip is not uniform, classification is determined with
regard to average width. Based on this Explanatory Note and a
Customs laboratory report, we found that the average width of the
weft strips was 4.1 millimeters. We ruled that "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." Therefore we concluded that the bag was classifiable as an
article of textile.
Although EN 5404(2)(iii) applies to the individual strips of
this bag, this note is not applicable for purposes of determining
an average overall width for the entire bag. The bag at issue is
made of strips of two different widths for classification
purposes. The strips of the warp, along with 30 percent of the
strips of the weft, are greater than 5 millimeters in width,
making the bag, prima facie, classifiable as plaiting in Heading
4602. 70 percent of the strips of the weft are less than 5
millimeters in width, making the bag, prima facie, classifiable
as an article of textile in Section XI in Heading 6305, which
provides for sacks and bags, of a kind used for the packing of
goods. Consequently, classification cannot be effected by GRI 1,
and the other GRI's must be applied.
GRI 3 provides for the classification of goods when, by
application of GRI 2(b) or for any other reason, goods are, prima
facie, classifiable under two or more headings. GRI 3(b)
provides that mixtures, composite goods consisting of different
materials or made up of different components, and goods put up in
sets for retail sale shall be classified as if they consisted of
the material or component which gives them their essential
character.
According to the Explanatory Notes, at page 4, the factor
which determines essential character will vary as between
different kinds of goods. It may, for example, be determined by
the nature of the material or component, its bulk, quantity,
weight or value, or by the role of a constituent material in
relation to the use of the goods.
For the merchandise at issue, the weight of the plaiting
material far exceeds that of the textile material. In addition,
the plaiting material covers much more of the surface area than
the textile material does. Consequently, we find that the
essential character of the bag is imparted by the plaiting strips
in application of GRI 3(b). The bag, therefore, is classified in
Heading 4602, HTSUSA.
In your letter of April 4, 1994, you state that the
"unnecessary" application of GRI 3(b) will result in inconsistent
tariff classifications for polypropylene bags. We have stated
above the legal basis for applying GRI 3(b) to the subject
merchandise. In addition, in those instances when it is not
clear which component of a polypropylene bag provides the
essential character, we will, as required, apply GRI 3(c).
HOLDING:
The merchandise at issue is classified under subheading
4602.90.0000, HTSUSA, which provides for basketwork, wickerwork
and other articles, made directly to shape from plaiting
materials or made up from articles of Heading 4601, other. The
rate of duty is 5.3 percent ad valorem.
HRL 950919, dated April 8, 1992, is hereby revoked.
In accordance with section 625, this ruling will become
effective 60 days from its publication in the Customs Bulletin.
Publication of rulings or decisions pursuant to section 625 does
not constitute a change of practice or position in accordance
with section 177.10(c)(1), Customs Regulations (19 CFR
177.10(c)(1)).
Sincerely,
John Durant, Director
Commercial Rulings Division