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HQ 953541

May 24, 1993

CLA-2 CO:R:C:T 953541 HP


TARIFF NO.: 5301.30.0000

Mr. Dennis Murphy
District Director
U.S. Customs Service
101 East Main Street
Norfolk, VA 23510

RE: Application for further review of Protest # 1401-92-100172. Flax waste and tow.

Dear Mr. Murphy:

This is in reply to your memorandum of February 26, 1993, transmitting Customs Form 19 and related papers for further review of Protest # 1401-92-100172. Please reference your file PRO-2-ADD:CO:E.


The merchandise at issue is described in Customs Laboratory Report No. 4-92-10315-001 of January 28, 1992, as "unbleached flax tow, processed but not spun. In our opinion, the sample is waste obtained from the hackling operation." Customs Laboratory Report No. 4-93-10341-001 of December 22, 1992, supplementing Report No. 4-92-10315-001, stated that "the average fiber length of the sample is 3.9 centimeters."

The merchandise was entered under subheading 5301.29, HTSUSA, as hackled or otherwise processed, but not spun, flax. Protestant argues that classification under subheading 5301.30, HTSUSA, as flax tow or waste, is more appropriate.


Whether the merchandise is considered tow or waste under the HTSUSA?


Subheading 5301.30, HTSUSA, provides for flax tow or waste, including yarn waste and garnetted stock. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System (Harmonized System) constitute the official interpretation of the scope and content of the tariff at the international level. They represent the considered views of classification experts of the Harmonized System Committee. Totes, Inc. v. United States, No. 91-09-00714, slip op. 92-153, 14 Int'l Trade Rep. (BNA) 1916, 1992 Ct. Intl. Trade LEXIS 158 (Ct. Int'l Trade 1992). While not treated as dispositive, the EN are to be given considerable weight in Customs' interpretation of the HTSUSA. Boast, Inc. v. United States, No. 91-11-00793, slip op. 93-20, 1993 Ct. Intl. Trade LEXIS 19 (Ct. Int'l Trade 1993). It has therefore been the practice of the Customs Service to follow, whenever possible, the terms of the Explanatory Notes when interpreting the HTSUSA.

The EN to this heading, at 742, defines flax tow and waste as:
consist[ing] generally of flax wastes of differing qualities suitable for spinning; it consists mainly of short, knotted, broken or tangled fibres obtained during the various processes such as scutching, hackling
(coming) and spinning.

The heading also covers yarn waste obtained during the spinning, reeling or weaving operations, and waste fibres obtained by tearing up waste pieces of fabric or made up articles into their constituent fibres; these are generally intended for re-spinning into yarns.

In view of the shortness of their component fibres, tow and other waste intended for spinning are usually carded and not hackled (combed). The slivers and rovings obtained after carding are also covered by this heading.

This heading also covers waste unsuitable for spinning into yarns, mainly obtained from the scutching or carding operations, and used as padding or stuffing, as a binding in mortars, or as raw material in the manufacture of certain kinds of paper.

Counsel for the protestant states that "[i]n its condition as imported, this merchandise is unsuitable for spinning into flax yarn by itself. Rather, it is used in small percentages with other fibers in order to produce blended yarns." Based upon this, counsel argues that classification as flax tow and waste is appropriate. We agree. The description of the merchandise in the original and supplementary laboratory reports, its inability to be spun into yarns by itself, as well as its intended use, clearly reflect the above-cited Explanatory Note. Accordingly, classification under subheading 5301.30, HTSUSA, is correct.


As a result of the foregoing, the instant merchandise is classifiable under subheading 5301.30.0000, HTSUSA, as flax tow and waste. The applicable rate of duty is Free. Since re- classification of the merchandise as indicated above would result in a lower rate of duty than the liquidated rate, you are instructed to Grant the protest in full. A copy of this decision should be forwarded to the protestant, or protestant's counsel, as part of the 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.


John Durant, Director
Commercial Rulings Division

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