CLA-2 OT:RR:CTF:TCM H264892 GA
Port Director
U.S. Customs & Border Protection
Service Port – Houston
7141 Office City Drive
Houston, TX 77087
RE: Application for Further Review of Protest (AFR) No. 5309-14-100364; Classification of polyethylene (PE) mesh
Dear Port Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 5309-14-100364, timely filed on December 17, 2014, on behalf of importer Pak-Lite, Inc., (“Pak-Lite” or “Protestant”). The AFR is against U.S. Customs and Border Protection’s (CBP) classification of polyethylene (PE) mesh under subheading 3920.10.0000 of the Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Other plates, sheets, film, foil and strip, of plastics, noncellular and not reinforced, laminated, supported or similarly combined with other materials: Of polymers of ethylene.” In reaching our decision, we have considered the product brochure and sample of the PE mesh that you provided along with your correspondence. A sample was received and analyzed by the Port of New York (NY) Laboratory. CBP has also considered arguments by counsel during a meeting with members of my staff at CBP Headquarters on December 9, 2015 and via telephone conference on November 8, 2017.
FACTS:
The product at issue is identified as PE mesh imported in rolls 6 feet wide and 6,000 feet in length. The product is a continuous roll with no edge working or other working. Protestant described the product as follows:
PE mesh is spunbonded polymer-based nonwoven web. The spunbond process is a spunmelt technology in which filaments have been extruded, drawn and laid on a moving screen to form a web. The production line extrudes and supplies its own fibers from a molten polymer in one continuous process. The edges are unfinished–no work has been done and they are unmade. The rolls of spunbonded polyethylene blend mesh film weighs 26 grams per meter. The imported products are simply rolls of nonwoven web – they are in no way “made.”
It is used in many ways, including industrial, packaging, construction, and agricultural.
After examining a representative sample of the subject merchandise that was hand-delivered during the aforementioned December 9, 2015 meeting, the CBP Laboratory and Scientific Services (LSS) described it, in pertinent part, as follows:
The sample, a mesh labeled “OTX mesh”, weighs 24.8 grams per square meter and is wholly of polyethylene type plastic.
The sample is not made of textile fiber, strip or yarns. It is not a nonwoven textile web or a textile fabric.
The sample consists of two layers of molten polyethylene extruded webs laid over one another in the cross-wise direction, and bonded together by thermal bonding method.
The product at issue was imported on multiple entries between April and September 2013 at the port of Houston and in March 2013 at the port of Hidalgo. CBP liquidated the subject entries between January and August 2014 as entered, under heading 3920, HTSUS, which provides for “Other plates, sheets, film, foil or strip, of plastics, noncellular and not reinforced, laminated, supported or similarly combined with other materials, of polymers of ethylene.”
Pak-Lite timely filed its Protest and AFR on December 17, 2014, claiming that the correct classification of the merchandise is subheading 5603.12.00, HTSUS, which provides for “Nonwovens, whether or not impregnated, coated, covered or laminated: Of man-made filaments: Weighing more than 25 g/m2 but not more than 70 g/m2.”
ISSUE:
Whether the extruded polyethylene (PE) mesh is classified in heading 3920, HTSUS, or heading 3926, HTSUS, or heading 5603, HTSUS.
LAW AND ANALYSIS:
Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification. The protest was timely filed within 180 days of liquidation of the first entry for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).
Further Review of Protest No. 5309-14-100364 was properly accorded to protestant pursuant to 19 C.F.R. § 174.24 (b) because this Protest “is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts.”
Classification determinations under the HTSUS are made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule 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 GRIs 2 through 6 may then be applied in order.
The 2013 HTSUS headings under consideration are as follows:
3920 Other plates, sheets, film, foil and strip, of plastics, noncellular and not reinforced, laminated, supported or similarly combined with other materials
* * *
3926 Other articles of plastics and articles of other materials of headings 3901 to 3914
* * *
5603 Nonwovens, whether or not impregnated, coated, covered or laminated
Note 2 to Chapter 39, HTSUS, provides as follows:
2. This chapter does not cover:
* * *
(p) Goods of section XI (textiles and textile articles)
Note 10 Chapter 39, HTSUS, provides as follows:
In headings 3920 and 3921, the expression "plates, sheets, film, foil and strip" applies only to plates, sheets, film, foil and strip (other than those of chapter 54) and to blocks of regular geometric shape, whether or not printed or otherwise surface-worked, uncut or cut into rectangles (including squares) but not further worked (even if when so cut they become articles ready for use).
In light of the fact that articles of section XI, HTSUS, are excluded from classification under Chapter 39 by Note 2(p), supra, the initial issue before CBP is whether the subject merchandise is a nonwoven textile of heading 5603, HTSUS.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HS and are thus useful in ascertaining the proper classification of merchandise. It is CBP’s practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 56.03 describes a nonwoven textile as follows:
A nonwoven is a sheet or web of predominantly textile fibres oriented directionally or randomly and bonded. These fibres may be of natural or man-made origin. They may be staple fibres (natural or man-made) or man-made filament or be formed in situ.
In their submission, protestant repeatedly describes the product as “spunbonded polyethylene.” Protestant also describes the spunbond process. In so doing, Protestant cites to four rulings alleged to cover similarly constructed merchandise, which were classified under heading 5603, HTSUS, as nonwovens. See New York Letter (“NY”) N248750, dated December 18, 2013, (finding that a nonwoven roofing underlayment material was classified under subheading 5603.13.0090, HTSUS); NY N168896, dated June 16, 2011 (classifying a spunbonded nonwoven fabric under subheading 5603.13.0090, HTSUS); NY N254246, dated July 1, 2014 (finding that a CaviWipes nonwoven, disposable wipes were classified under subheading 5603.12.0010, HTSUS); NY N186636, dated October 27, 2011 (classifying five separate roofing underlayment/footing materials under subheadings 5603.14.9090, HTSUS, 5602.10.1000, HTSUS, and 3921.90.1500, HTSUS, respectively).
However, this is not how the instant product is manufactured. The descriptive literature submitted with the request states that the PE mesh is constructed as follows: “multiple layers of film are strengthened, slit, and then thermo bonded into a mesh structured fabric.” This manufacturing process is completely different from the spunbond process Protestant outlined above. Furthermore, there is no reference to “spunbonded PE” anywhere in any of the entry documents. Each invoice refers to the product as “PE Mesh.”
Moreover, an examination of the PE mesh sample provided during our meeting with counsel reveals that the product is not manufactured from drawn filaments. Instead, it is manufactured from interconnected segments of split film. The magnified view clearly shows that the product is manufactured from strips of film which have been mechanically cut and spread diagonally to form what may appear only at a glance to be filaments. In NY N018427, dated November 5, 2007, “split film” was discussed. The ruling explains that “split film consists of a single plastics unit, with no individual fibers, filaments, or strips contributing to its existence.” The instant PE mesh is indeed quite different from the above description of nonwoven textiles in EN 56.03 in that it is not made from filament or other fibers. Based on the foregoing, we find that the PE mesh cannot be classified as a nonwoven textile in heading 5603, HTSUS.
Regarding the applicability of heading 3920, HTSUS, we note that in HQ 966281, dated March 17, 2003, a geotextile material manufactured from leno woven mesh visibly coated on both sides with plastics was classified under heading 3926, HTSUS. While the instant PE mesh is not entirely similar to the geotextile material in construction, the issue of what constitutes a “sheet” is directly applicable and instructive. In classifying the geotextile material in HQ 966281 under heading 3926, HTSUS, we determined that the open spaces of the geotextile material were large enough that the material could not be considered to have a "broad surface." The unusually wide spacing in the weave interrupts any sort of surface continuity that could be formed, with each warp and weft yarn essentially standing alone, except where they intersect. The weave was not tight enough, and the yarns were not close enough, for them to form a continuous surface. CBP has consistently held that significant open spaces in a material prevented the material from having a “broad surface” or continuous surface. We note that CBP’s position is consistent with the World Customs Organization’s (WCO) Harmonized System Committee (HSC) decisions.(
The instant extruded polyethylene mesh, like the geotextile material of HQ 966281 and that classified by the HSC, has open spaces and cannot be considered to have a broad surface. Thus, the mesh lacks the continuity necessary to be classified as a sheet of plastics of heading 3920, HTSUS. Therefore, we are in agreement that the subject PE mesh does not fall under the scope of heading 3920, HTSUS, per Note 10 to Chapter 39, supra.
Consequently, in light of the fact that the subject merchandise does not fall under the scope of headings 5603 or 3920, HTSUS, we find that the PE mesh is classifiable under heading 3926, HTSUS, specifically, subheading 3926.90.99, HTSUS. This conclusion is consistent with HQ 967325, dated November 8, 2004, HQ 967346, dated January 25, 2005, HQ 965889, dated March 17, 2003, NY L85732, dated July 12, 2005, NY G87246, dated March 9, 2001, NY K85598, dated May 21, 2004, N07631, dated October 13, 2009.
HOLDING:
Pursuant to GRIs 1 and 6, polyethylene (PE) mesh is classified in heading 3926, HTSUS, specifically, in subheading 3926.90.99, HTSUS, which provides for “Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other.” The column one, general rate of duty is 5.3 percent ad valorem.
Since the rate of duty under the classification indicated above is more than the liquidated rate, you are instructed to DENY the protest in full.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter.
No later than 60 days from the date of this letter, the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP homepage 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 and Trade Facilitation Division