CLA-2 RR:TC:TE 958078 NLP
Mr. Dan Hogan
Midco Enterprises, Inc.,
145 Grand Avenue
Kirkwood, MO 63122-6007
RE: Modification of NYRL 809750; headings 3923 and 6305; Explanatory
Notes to heading 6305; HRL 956783
Dear Mr. Hogan:
This is in response to your letter of June 2, 1995, in which you
requested a reconsideration of New York Ruling Letter (NYRL) 809750,
dated May 15, 1995, wherein Customs classified a mesh bag as a textile
article in heading 6305, Harmonized Tariff Schedule of the United States
(HTSUS). We have reviewed this ruling and while we agree with the
classification of the bag in heading 6305, HTSUS, we find that the bag
was incorrectly classified at the 6 digit subheading level of 6305.31,
HTSUS. The bag is correctly classified in subheading 6305.39, HTSUS,
and this ruling modifies NYRL 809750 to reflect this classification.
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. No. 103-182,
107 Stat. 2057 (1993)) (hereinafter, section 625), notice of the
proposed modification of NYRL 809750 was published November 1, 1995, in
the CUSTOMS BULLETIN, Volume 29, Number 44.
FACTS:
The article at issue is a bag made of an open-work warp knit
textile fabric composed of polyethylene fibers having a cross-sectional
dimension of less than 1 millimeter. The bag measures approximately
43.5 centimeter long by 20 centimeters wide and weighs 0.52 ounces. A
piece of the same fabric is inserted through the top to service as a
drawstring closure. It is used to hold seed corn. In a conversation
with National Import Specialist Vito Gualario, you stated that in the
experimental fields, seeds from experimental plots are placed in these
bags, they are marked for identification and
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placed into a box. The box is then transported to a research station
where the seeds are evaluated and either forwarded to the home office or
returned to the plots. The bags are discarded after evaluation.
NYRL 809750 classified this bag in subheading 6305.31.0020, HTSUS,
which provides for "Sacks and bags, of a kind used for the packing of
goods: Of man-made textile materials: Of polyethylene or polypropylene
strip of the like: Other." The rate of duty is 9.4% ad valorem and the
textile category code is 669.
In your letter to Customs, dated June 2, 1995, you stated that the
subject bag is made of plastic and it is not a textile product, except
by application of the 5 millimeter rule set out in the HTSUS.
Therefore, the bag should be classified in subheading 3923.21.0019,
HTSUS, which provides for "Articles for the conveyance or packing of
goods, of plastics...: Sacks and bags (including cones): Of polymers of
ethylene : Reclosable, with integral extruded closure: Other."
Furthermore, you stated that because of the bag's classification
in subheading 6305.31.0020, HTSUS, its' cost would be economically
prohibitive for U.S. companies and the subsequent loss of its
availability would cause severe damage to every seed company in the U.S.
The subject bag has become an integral part of all seed research
programs in American agriculture. In the genetic selection work they
do, the programs need the bag's small mesh to keep kernels with
particular genetic characteristic from getting mixed in with other
seeds. At the same time, this bag permits air flow through and around
the seed so it can be kept at the necessary moisture content level.
On November 17, 1995, you submitted comments in response to our
proposed modification of NYRL 809750. In your comments, you opposed the
proposed classification of the mesh bag as a textile article. You
state that this classification would cause "severe economic damage to
the seed industry" in the U.S. and asked again if we would review our
decision and consider an exception for this particular product.
ISSUE:
What is the tariff classification of the mesh bag at issue?
LAW AND ANALYSIS:
The classification of goods under the HTSUS is governed by 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. In the event that
the goods cannot be classified solely on the basis of GRI 1, and if the
headings and legal notes do not otherwise require, the remaining GRI's
may be applied, taken in order.
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The first issue we have to determine is whether the bag is
composed of a textile material or of plastic. In this regard, we look
to the Legal Notes to Section XI, HTSUS, which covers textiles and
textile articles. These Notes are considered law and are not merely
technical requirments. Legal Note 1(g) is relevant in this case and
provides the following:
1. This section does not cover:
* * * * * *
(g) 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).
In accord with the above Legal Note, monofilament must have a
cross-sectional dimension exceeding 1 mm to be classified as a plastic
in chapter 39, HTSUS. Therefore, monofilament measuring less than 1 mm
is a textile and articles fabricated of this monofilament are
classifiable as textile articles. As the cross-sectional dimension of
the filaments forming the subject bag measures less than 1millimeter, it
is considered a textile for HTSUS classification purposes and it is
precluded from classification in Chapter 39, HTSUS .
The next issue to be determined is the classification of the bag
within Section XI, HTSUS. Heading 6305, HTSUS, provides for sacks and
bags, of a kind used for the packing of goods, of textile materials.
The Harmonized Commodity Description and Coding System Explanatory Notes
(ENs) constitute the official interpretation of the tariff at the
international level. It has been the practice of the Customs Service to
follow, whenever possible, those terms when interpreting the HTSUS. The
ENs to heading 6305 state the following:
This heading covers textile sacks and bags of a kind normally
used for the packing of goods for transport, storage or sale.
These articles, which vary in size and shape, include in
particular flexible intermediate bulk containers, coal, grain, flour,
potato, coffee or similar sacks...
As the subject bag is used for the packing and storing of various types
of corn seed and it is considered to be made of a textile material,
classification in heading 6305, HTSUS, is consistent with both Legal
Headnote 1(g) to Section XI and the ENs to heading 6305.
We note that we dealt with the classification of a similar product
used for agricultural purposes in Headquarters Ruling Letter (HRL)
956783, dated January 20, 1995. At issue in that case was the
classification of a bag composed of polypropylene strips,
each measuring under 5 mm in width. Based on Legal Note 1(g) to Section
XI, HTSUS, the
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bag was considered to be composed of man-made textile materials. As it
was used to hold articles and perhaps carry them, it was considered to
be a sack or bag classifiable in heading 6305, HTSUS.
While the classification of this article in heading 6305, HTSUS,
is in accordance with NYRL 809750, we find that this article was
incorrectly classified therein at the 6 digit subheading level. NYRL
809750 classified the subject bag in subheading 6305.31.0020,
HTSUS, as being made of polyethylene strip. However, this bag is made
of polyethylene fibers and it is correctly classifiable in subheading
6305.39.0000, HTSUS, which provides for "Sacks and bags, of a kind used
for the packing of goods: Of man-made textile materials: Other."
Please be assured that we have reviewed both your letter of June
2, 1995, and your comments submitted in response to the proposed
modification. However, as discussed above, the subject mesh bags remain
classifiable as textile articles in heading 6305, HTSUS. While we
regret that the classification of your merchandise in subheading
6305.39.0000, HTSUS, imposes a higher duty rate and makes it subject to
quota/visa restrictions, we must issue a ruling on this matter based on
statutory requirements as set out in 19 U.S.C. 1625(c). However, if you
are currently importing these bags, you may file a protest pursuant to
section 174, Customs Regulations (19 C.F.R. 174 ), challenging this
classification. We have enclosed a copy of the protest regulations for
your review.
Finally, regarding your request that we consider a specific
exception for this bag within subheading 6305.39.0000, HTSUS, we have
examined the HTSUS to see if any possible exception has been provided
for your type of product. We note that it is not within this office's
mandate to create an exception if one has not already been provided in
the HTSUS. On examination, we found one provision in the HTSUS,
subheading 9817.00.50, HTSUS, that is a special classification provision
that provides duty free treatment for "Machinery, equipment and
implements to be used for agricultural or horticultural purposes."
However, as explained below, this provision is not applicable to your
merchandise.
To be classified within this provision the goods must meet three
prerequisites. First, the article in question must not be excluded from
the heading under Section XXII, Chapter 98, Subchapter XVII, U.S., Note
2, HTSUS. Secondly, the article to be classified must be the article
that performs the agricultural or horticultural pursuit in question.
Thirdly, the merchandise must have the actual use certification required
under 10 C.F.R. 10.138.
Regarding the first prerequisite, Section XXII, Chapter 98,
Subchapter XVII, U.S. Note 2(e), HTSUS, excludes articles of textile
materials from classification within heading 9817.00.50, HTSUS. As the
subject article is considered a textile material for classification
purposes, the first prerequisite for classification in subheading
9817.00.50 is not fulfilled. Therefore, this subheading cannot be
applied to the mesh bags and they are not entitled to duty free entry.
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Again, we suggest that for information as to a potential
quota/visa waiver for your product or other related quota/visa issues,
you should contact the following office:
Chairman, Committee for the Implementation of Textile Agreements,
U.S. Department of Commerce, Room 3001
Washington DC 20230
HOLDING:
NYRL 809750 is hereby modified concerning the classification of
the bag at the six digit subheading level. The subject bag is
classifiable as a textile article in subheading 6305.39.0000, HTSUS.
The rate of duty is 9.4% ad valorem and the textile category code is
669.
In accordance with section 625, this ruling will become effective
60 days after its publication in the CUSTOMS BULLETIN. Publications 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 C.F.R. 177.10(c)(1)).
The designated textile and apparel categories may be subdivided
into parts. If so, the 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 the importer 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
updated weekly and 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, the importer should contact the local Customs
office prior to importation of this merchandise to determine the current
status of any import restraints or requirements.
Sincerely,
John Durant, Director
Tariff Classification Appeals
Division