CLA-2 RR:CTF:TCM H156536 EG
Port Director
U.S. Customs and Border Protection
200 East Bay Street
Charleston, SC 29401
Attn: Drusilla Addison, Import Specialist
Re: Application for Further Review of Protest No. 1601-11-100103: Textile Strips for Artificial Grass
Dear Port Director:
This is in response to Protest 1601-11-100103, dated February 23, 2011, filed by counsel on behalf of Polyloom Corporation of America (Polyloom), in response to your classification of textile strips for artificial grass under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The subject merchandise consists of green textile strips which are imported to manufacture artificial grass. According to the U.S. Customs and Border Protection (CBP) laboratory report, each textile strip measures approximately 1.5 millimeters wide. The textile strips are composed of polyethylene, a plastic polymer. They do not contain any elastomeric filaments.
The protest states that wrapping a single textile strip around a large spool would not be practical. Inevitably, the textile strip would snag or break, interrupting the operation of the artificial grass tufting machine. As a result, the textile strips are imported in a bundle of eight textile strips bound together by two black yarns. This bundle of textile strips wraps around a bobbin and resembles a green spool of thread.
The protest further states that the black wrapping yarns are intentionally much weaker than the textile strips. Polyloom states that the sole purpose of the black wrapping yarns is to package the textile strips for efficient transport and handling. Polyloom attests that such packaging is customary in the artificial turf industry. When the textile strips are fed into a tufting machine, the black fibers break away. The black fibers are then discarded as waste material. Polyloom submitted photographs of the wrapped bobbin and a finished piece of artificial turf. The black fibers were absent from the photograph of the finished artificial turf.
The subject protest covers eighteen entries of the textile strips under heading 5404, HTSUS, which provides for synthetic textile strips. Between October 15, 2010, and January 21, 2011, CBP liquidated all of these entries under heading 5606, HTSUS, which provides for gimped yarn.
On February 23, 2011, Polyloom timely submitted the subject Protest and Application for Further Review (AFR). The matter is protestable as a decision on classification. 19 U.S.C. §1514(a)(2). Polyloom’s AFR satisfies application criteria because Polyloom alleges facts which CBP has not previously ruled upon. 19 C.F.R. § 174.24(b). Namely, Polyloom claims that the textile strips are not “gimped” within the meaning of heading 5606, HTSUS. Rather, the black wrapping yarns are solely used as packing material under GRI 5(b) and should therefore be classified together with the textile strips under heading 5404, HTSUS.
ISSUES:
Are these wrapped textile strips classified under heading 5404, HTSUS, as synthetic textile strips or under heading 5606, as gimped yarn?
LAW AND ANALYSIS:
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context, which requires otherwise, by the Additional U.S. Rules of Interpretation. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order.
GRI 5(b) provides that:
Subject to the provisions of rule 5(a) above, packing materials and packing containers entered with the goods therein shall be classified with the goods if they are of a kind normally used for packing such goods. However, this provision is not binding when such packing materials or packing containers are clearly suitable for repetitive use.
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The HTSUS provisions at issue are as follows:
5404 Synthetic monofilament of 67 decitex or more and of which no cross-sectional dimension exceeds 1 mm; strip and the like (for example, artificial straw) of synthetic textile materials of an apparent width not exceeding 5 mm …
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5606 Gimped yarn, and strip and the like of heading 5404 or 5405, gimped (other than those of heading 5605 and gimped horsehair yarn); chenille yarn (including flock chenille yarn); loop wale-yarn …
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Note 1 to Chapter 54 states as follows:
Throughout the tariff schedule, the term "man-made fibers" means staple fibers and filaments of organic polymers produced by manufacturing processes, either:
(a) By polymerization of organic monomers to produce polymers such as polyamides, polyesters, polyolefins or polyurethanes, or by chemical modification of polymers produced by this process (for example, poly(vinyl alcohol) prepared by the hydrolysis of poly(vinyl acetate)); or
(b) By dissolution or chemical treatment of natural organic polymers (for example, cellulose) to produce polymers such as cuprammonium rayon (cupro) or viscose rayon, or by chemical modification of natural organic polymers (for example, cellulose, casein and other proteins, or alginic acid), to produce polymers such as cellulose acetate or alginates.
The terms "synthetic" and "artificial", used in relation to fibers, mean: synthetic: fibers as defined at (a); artificial: fibers as defined at (b).
Strip and the like of heading 5404 or 5405 are not considered to be man-made fibers.
The terms "man-made", "synthetic" and "artificial" shall have the same meanings when used in relation to "textile materials".
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In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
EN 56.06 states, in pertinent part, the following:
(A) GIMPED YARN, AND STRIP AND THE LIKE OF HEADING 54.04 OR 54.05, GIMPED (OTHER THAN THOSE OF HEADING 56.05 AND GIMPED
HORSEHAIR YARN)
These products are composed of a core, usually of one or more textile yarns, around which other yarn or yarns are wound spirally. Most frequently the covering threads completely cover the core, but in some cases the turns of the spiral are spaced; in the latter case, the product may have somewhat the appearance of certain multiple (folded), cabled or fancy yarns of Chapters 50 to 55, but may be distinguished from them by the characteristic of gimped yarn that the core does not itself undergo a twisting with the cover threads.
The core of the gimped yarn of this heading is usually of cotton, other vegetable fibres or man made fibers and the covering threads are usually finer and more glossy (e.g., silk, mercerized cotton or man made fibers).
Gimped yarns with cores of other materials are not necessarily excluded provided the product has the essential character of a textile article.
Gimped yarns are used as a trimming and also very largely for the manufacture of such trimmings. Some, however, are also suitable for other uses, for example, as buttonhole cord, in embroidery or for tying parcels.
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GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes. Heading 5404, HTSUS, provides for synthetic textile strips of an apparent width not exceeding 5mm. Under Note 1 to Chapter 54, a synthetic textile material includes a textile material manufactured from a plastic polymer. The subject textile strips consist of a plastic polymer. As such, they are classifiable as synthetic textile strips under heading 5404, HTSUS.
Heading 5606, HTSUS, provides for gimped yarn. According to EN 56.06, a gimped yarn consists of a core of textile yarns, around which other yarn or yarns are wound spirally. As imported, the textile strips consist of a core of eight strips. The strips do not exceed five millimeters in width. They are bound together by two black yarns. Polyloom states that these black wrapping yarns serve two purposes. First, the black yarns keep the strips in a stronger bundle during transport so that they are less likely to break or tangle. Second, the bundles of eight strips are tufted together for convenience and efficiency during the artificial grass manufacturing process.
In Inabata Specialty Chemicals v. United States, 29 C.I.T. 419, 424 (2005), the U.S. Court of International Trade (CIT) stated that “tariff classification law relies heavily on commercial practice and understandings. Tariff classifications are mainly about the marketplace.” A gimped yarn is a distinct commercial product. Gimped yarns are usually decorative. EN 56.06 mentions that gimped yarns are “used as a trimming . . . or for the manufacture of such trimmings,” while allowing for other uses, such as tying a parcel. Another application for gimped yarns is as a cover for an elastomeric core instead of a sheath. While the filaments stretch, the gimping yarns can spread apart without restricting the movement of the monofilaments. There are other utilitarian uses as well. But in all cases, the gimping yarns are part of the finished product. In the instant item, the wrapping yarns break and fall away; they are not part of the finished product.
According to Polyloom’s protest and exhibits, the black wrapping yarns are packaging. In order to classify packaging, we must look to GRI 5. GRI 5(b) states, in pertinent part, that “packing materials and packing containers entered with the goods therein shall be classified with the goods if they are of a kind normally used for packing such goods … . [T]his provision is not binding when such packing materials or packing containers are clearly suitable for repetitive use.”
Polyloom has provided CBP with exhibits which demonstrate that the use of wrapping yarns with textile strips is customary packaging in the artificial turf industry. Polyloom has also presented evidence that the wrapping yarns are disposed of during the tufting process. Hence, even though the wrapping yarns bundle the textile strips in a convenient form for the manufacturing process, they are not part of the finished product. The wrapping yarns meet the description of packing in GRI 5(b). Accordingly, we classify the wrapping yarns together with the textile strips. The textile strips are synthetic textile materials which do not exceed five millimeters in width. As such, the textile strips are properly classified under heading 5404, HTSUS.
HOLDING:
By application of GRI 1 and GRI 5, the textile strips are classified in subheading 5404.90.00, HTSUS, which provides, in pertinent part, for “[S]trip and the like (for example, artificial straw) of synthetic textile materials of an apparent width not exceeding 5 mm: other.” The 2010 column one, general rate of duty is free. You are instructed to GRANT the protest.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
You are to mail this letter together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of this letter, the Office of International Trade will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B Harmon, Director
Commercial Rulings Division