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HQ 950227

November 12, 1991

CLA-2 CO:R:C:T 950227 HP


TARIFF NO.: 5402.43.0020

Mr. Daniel C. Holland
District Director c/o
U.S. Customs Service
ATTN: Protest Reviewer
9901 Pacific Highway
Blaine, WA 98230

RE: Further review of protest no. 30041-000159. Polyester yarn not found to be high tenacity by Customs Laboratory is classified as other yarn.

Dear Mr. Holland:

This is in reply to your memorandum attaching a request for further review of Protest 30041-000159 of July 3, 1991. Please reference your file PRO-2-O:C MM:slj.


The merchandise at issue consists of single ply polyester filament yarn from Canada. The merchandise was liquidated under subheading 5402.43.0020, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as other polyester yarns. We there- fore assume, for purposes of this ruling, that the yarn is either monofilament or multifilament, untwisted or with a twist of less than five turns per meter. Protestant, xxxx xxxxxx xxxxxxx, claims that the polyester yarn is a high tenacity yarn, and therefore classifiable in subheading 5402.20.3040. This provi- sion allows a Free rate of duty under the U.S. Canada Free Trade Agreement.


Whether the instant yarn is considered high tenacity under the HTSUSA?


The General Rules of Interpretation (GRIs) to the HTSUSA govern the classification of goods in the tariff schedule. GRI 1 states, in pertinent part, that:

... classification shall be determined according to the terms of the headings and any relative section or chapter notes ...

Goods which cannot be classified in accordance with GRI 1 are to be classified in accordance with subsequent GRIs, taken in order. Note 6 to Section XI, HTSUSA defines high tenacity yarn as:
yarn having a tenacity, expressed in cN/tex (centinewtons per tex), greater than the following:

Single yarn of nylon or other polyamides, or of polyesters. . . . . . .60 cN/tex

Multiple (folded) or cabled yarn of nylon or other polyamides, or of polyesters. . . . . . . . . . . . . . . .53 cN/tex

Single, multiple (folded) or cabled yarn of viscose rayon . . . . . . . . . 27 cN/tex.

Upon entry, a sample of the yarn was sent to our San Fran- cisco office for analysis. Report 8-91-10121-001 states that:

According to the New York Laboratory, the sample is a single ply polyester filament yarn. It does not meet the requirements for high tenacity specified in HTSUS Section XI, Note 6.

Protestant disagreed with this conclusion, and submitted the Celanese Canada Inc. (the manufacturer of the yarn) product literature stating that the typical physical properties of Fortrel~ Type 800 polyester included a tenacity of 7.9 dN/tex (equal to 79 cN/tex). Based upon this discrepancy, our New York Laboratory re-tested the yarn, stating:

[t]he sample was tested on a Thwing-Albert Electronic Tensile Tester (Model Number QCII- XS) using ASTM method number D885.

The sample was found to have a tenacity of 44.52 [cN/tex] and does not meet the requirements for high tenacity specified in HTSUS Section XI, Note 6.

It is a well accepted principle of Customs legal analysis that merchandise is classified using its condition as imported. While it may be possible that, at the time of literature develop- ment, Celenese's testing showed a tenacity of 79 dN/tex, Customs Laboratory analysis of the merchandise as imported is control- ling. The Protest should therefore be Denied in Full.


As a result of the foregoing, the merchandise is classified under subheading 5402.43.0020, HTSUSA, as synthetic filament yarn (other than sewing thread), not put up for retail sale, including synthetic monofilament of less than 67 decitex, other yarn, single, untwisted or with a twist not exceeding 50 turns/m, of polyesters, other, monofilament; multifilament, untwisted or with a twist of less than 5 turns per meter. Articles which meet the definition of "goods originating in the territory of Canada" (see General Note 3(c)(vii)(B), HTSUSA) are subject to reduced rates of duty under the United States-Canada Free Trade Agreement Implementation Act of 1988. If the merchandise constitutes "goods originating in the territory of Canada," At the date of entry, the applicable rate of duty was 8 percent ad valorem.

Since the rate of duty under the classification listed above is the same as the liquidated rate, you are instructed to deny the protest in full. A copy of this decision should be attached to the Form 19 Notice of Action.

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is imported. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.


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