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HQ 956714





November 3, 1994

CAL-2 CO:R:C:T 956714 SK

CATEGORY: CLASSIFICATION

TARIFF NO.: 5407.20.0000

Tony Ngo
Bulkon Systems International (Hong Kong), Ltd. Rm. 1802, Chung Wai Commercial Bldg.
447-449 Lockhart Road
Causeway Bay
Hong Kong

RE: Classification of woven fabric used as a silt barrier; 5407.20.0000, HTSUSA; 100 percent polypropylene; Note 2(l) to Chapter 39 excludes textile and textile articles of Section XI; EN to heading 5404, HTSUSA; EN to heading 5407, HTSUSA; HRL 952573 (4/21/94); NYRL's 894077 (2/4/94); 885054 (4/22/93); 880627 (12/8/92); and 879740 (11/12/92).

Dear Mr. Ngo:

This is in response to your letter of July 8, 1994, in which you request a binding classification ruling. At issue is the proper classification of 100 percent polypropylene woven fabric used as a silt fence barrier.

FACTS:

The subject merchandise is a plain woven fabric consisting of 100 percent polypropylene. It is constructed using strips that have been slit to a width of approximately 2.5 millimeters. It contains 10 strips per inch in the warp and 10 strips per inch in the filling.

You submit that this fabric will be used as a silt barrier and that classification is proper under subheading 3920.20.0000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

ISSUE:

Whether the subject merchandise is classifiable under heading 3920, HTSUSA, or under heading 5407, HTSUSA?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRI's). 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's.

Note 2(l) to Chapter 39 states that "this chapter does not cover "[G]oods of Section XI (textile and textile articles)." It follows, therefore, that the determinative issue is whether the fabric at issue is considered a good of Section XI. If so, classification is precluded from heading 3920, HTSUSA.

The Explanatory Notes to heading 5404, HTSUSA, which represent the official interpretation of the HTS at the international level, state:

"[T]he strips of this heading are flat, of a width not exceeding 5 mm, either produced as such by extrusion or cut from wider strips or from sheets."

The subject merchandise is manufactured from strips that are flat and cut from wider strips to a width of 2.5 mm. Based on the definition set forth supra, the strips from which the subject fabric is woven are considered textile materials.

The EN to heading 5407, HTSUSA, provide:

"[T]his heading covers woven fabrics (as described in Part (I)(C) of the General Explanatory Note to Section XI) made of synthetic filament yarn or monofilament or strip of heading 54.04. {emphasis added}

As the subject fabric is classifiable as a woven fabric of heading 5407, HTSUSA, obtained from a textile material of heading 5404, HTSUSA, it is a textile material of Section XI. The subject fabric is therefore precluded from classification within Chapter 39.

It is our opinion that the subject fabric is classifiable in subheading 5407.20.0000, HTSUSA, which provides for woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404, woven fabrics from strip or the like. This decision is in accordance with previous Customs rulings in which we classified similar material within subheading 5407.20.0000, HTSUSA. See New York Ruling Letters (NYRLs') 894077 (2/4/94); 885054 (4/22/93); 880627 (12/8/92); and 879740 (11/12/92).

We think it important to recognize that even if the subject fabric were not precluded from classification within heading 3920 on the basis of Note 2(l) to Chapter 39, the fabric would still not be classifiable within that heading because the subject fabric is coated on only one side. Coated fabrics of Chapter 39 must be coated on both sides with a plastics coating that is visible to the naked eye.

HOLDING:

The silt fence barrier is classifiable under subheading 5407.20.0000, HTSUSA, which provides for woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404, woven fabrics from strip or the like, dutiable at a rate of 17 percent ad valorem. The applicable textile quota category is 620.

The designated textile and apparel categories may be subdivided into parts. If so, the 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 renegotiations and changes, to obtain the most current information available we suggest you check, close to the time of shipment, the Status Report on Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service which is updated weekly and is available for inspection at your local Customs office.

Due to the nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director
Commercial Rulings Division

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