CLA-2 RR:CR:TE 962373 jb
Paresh Waghela
Fritz Marketing, Inc.
555 Burnhamthorpe Road, Suite 209
Etobicoke, Ontario M9C 2Y3
CANADA
RE: Request for reconsideration of NY D84006; classification of polypropylene bag
Dear Mr. Waghela:
This is in response to your letter, dated November 19, 1998, requesting reconsideration of New York Ruling Letter (NY) D84006, dated November 4, 1998, which classified a polypropylene bag imported from India, China, or Indonesia, in heading 6305, Harmonized Tariff Schedule of the United States, (HTSUS). A sample was submitted to this office for examination.
FACTS:
The subject merchandise consists of a bag measuring approximately 36 inches by 22 inches which will be used to pack, ship, and market agricultural commodities. It is indicated that although the bags may be imported in various sizes, they will be manufactured with the same materials and used in the same manner.
The subject merchandise is made from hemming a tubular plain woven fabric, consisting of 100 percent polypropylene strip, at one end. The fabric used in the manufacture of this bag has been coated, covered or laminated on the outer surface with a polypropylene plastic that has been colored white and has been rendered opaque.
In NY D84006, this merchandise was classified in heading 6305, HTSUS, in the provision for, sacks and bags, of a kind used for the packing of goods, of polypropylene strip. It is your opinion that the classification of this merchandise as a textile bag in heading 6305, HTSUS, is incorrect. Although you do not raise an alternative classification for this merchandise, it appears from your letter that you believe this merchandise to be “coated” on both sides based on the fact that both the front and back of the bag have been coated with plastic.
ISSUE:
What is the proper classification for the subject merchandise?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is in accordance with 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.
Before determining the appropriate heading for this merchandise, a decision must be made with respect to the composition of the fabric from which these bags are manufactured. Heading 5404, HTSUS, provides for, among other things, strip and the like of synthetic textile materials of an apparent width not exceeding 5mm. The Explanatory Notes to the Harmonized Commodity Description and Coding System (EN) to heading 5404, HTSUS, state that:
(2) Strip and the like, of synthetic textile materials. The strips of this heading are flat, of a width not exceeding 5mm, either produced as such by extrusion or cut from wider strips or from sheets.
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As the subject merchandise consists of strip measuring approximately 2.5 millimeters in width, it meets the dimensional requirements to be considered man-made textile strip. It thus follows that the fabric made from such strip, and thus the bags made from this fabric, are considered to be of man-made textile material.
The next issue to be resolved is whether these bags, which are made of a textile fabric, but are coated, are properly classified in a heading for textiles (heading 6305, HTSUS) or in a heading for articles of plastic (heading 3923, HTSUS). The EN to chapter 39, in addressing plastics and textile combinations state, “Wall or ceiling coverings which comply with Note 9 to this Chapter are classified in heading 39.18. Otherwise, the classification of plastics and textile combinations is essentially governed by Note 1(h) to Section XI, Note 3 to Chapter 56 and Note 2 to Chapter 59....”
Chapter 59, HTSUS, provides for impregnated, coated, covered or laminated textile fabrics. Note 1 to chapter 59, HTSUS, states that, “Except where the context otherwise requires, for the purposes of this chapter the expression “textile fabrics” applies only to the woven fabrics of chapters 50 to 55 and headings 5803 and 5806, the braids and ornamental trimmings in the piece of heading 5808 and the knitted or crocheted fabrics of heading 6002.”
Chapter Note 2(a) to Chapter 59, HTSUS, states, in pertinent part:
Heading 5903 applies to:
Textile fabrics, impregnated, coated, covered or laminated with plastics, whatever the weight per square meter and whatever the nature of the plastic material (compact or cellular), other than:
(1) Fabrics in which the impregnation, coating or covering cannot be seen with the naked eye (usually chapters 50 to 55, 58 or 60); for the purpose of this provision, no account should be taken of any resulting change of color;
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(3) Products in which the textile fabric is either completely embedded in plastics or entirely coated or covered on both sides with such material, provided that such coating or covering can be seen with the naked eye with no account being taken of any resulting change of color (chapter 39);
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As was stated in Headquarters Ruling Letter (HQ) 950542, dated March 2, 1992, addressing whether a plastic coated fabric was “coated” for purposes of heading 5903:
The sole criterion upon which Customs is to determine whether fabric is coated for purposes of classification under heading 3921, HTSUSA, is clear and unambiguous: fabric is coated and is classifiable in Chapter 39 if the plastic coating is visible to the naked eye. This standard does not allow the examiner to take the “effects” of plastic into account. Plastic coating will often lend a sheen to fabric, result in a change of color, or increase a fabric’s stiffness; these are factors which, while indicative of the presence of plastic, may not be taken into account in determining whether the plastic itself is visible to the naked eye.
Upon close examination of the submitted merchandise, it is only the exterior of the bag which is coated. In correctly applying the terms of chapter note 2(a) to chapter 59, HTSUS, one must first understand that any reference to the two “sides” of the bag is an indication that the inside and outside surfaces of the bag must be examined, not as you believe, the two external sides of the bag. With respect to the bag’s exterior surface, we agree that the weave of the fabric is obscured by the plastic coating, and that the exterior is indeed “coated” for the purposes of that note. However, we find that the bag’s interior is not visibly coated. Consequently, we find that the plastic coating is visible to the naked eye on one side of this product, that is, the outside of the bag.
Chapter 63, HTSUS, provides for, among other things, “other made up textile articles.” Note 1 to chapter 63, HTSUS, states that, “Subchapter 1 applies only to make up articles, of any textile fabric.” We have already indicated that the subject merchandise is composed of textile fabric of heading 5903, HTSUS. We must now determine whether this merchandise is “made up” pursuant to the terms of Note 7 to Section XI, which states, in pertinent part:
For the purposes of this section, the expression “made up” means:
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(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 unravelling by whipping or by other simple means;
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As these bags are manufactured by cutting the tubular fabric to specified lengths and then hemming one end to create the bag, this merchandise qualifies as a made up article, for purposes of classification in chapter 63.
Heading 6305, HTSUS, provides for, sacks and bags, of a kind used for the packing of goods. The EN to that heading state:
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, mail bags, and small bags of the kind used for sending samples of merchandise by post. The heading also includes such articles as tea sachets.
As you indicate that the subject bags will be used to pack, ship, and market agricultural commodities, this merchandise fits squarely within the parameters of the EN to this heading. Accordingly, the subject merchandise, is properly classified in heading 6305, HTSUS.
HOLDING:
The subject merchandise was correctly classified in NY D84006 in heading 6305, HTSUS.
The subject merchandise is classifiable in subheading 6305.33.0020, HTSUSA, which provides for, sacks and bags, of a kind used for the packing of goods: other, of polyethylene or polypropylene strip or the like: other. The applicable general column one rate of duty is 9 percent ad valorem and the quota category is 669.
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 negotiations and
changes, we suggest that your client check, close to the time of shipment, the Status Report 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, you should contact the local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division`