HQ 955258

January 27, 1994

CLA-2 CO:R:C:T 955258 ch

CATEGORY: Classification

TARIFF NO.: 5404.90.0000

District Director

U.S. Customs Service

4430 East Adamo Drive

Suite 301

Tampa, Florida 33605

RE: Application for further review of Protest No. 1801-93-

100040 under 19 U.S.C., section 1514(c)(2);

classification of fibrillated polypropylene strip; man-

made fiber; 10,000 decitex; not twine, cordage, ropes

and cables.

Dear Sir:

This is a decision on application for further review of a

protest timely filed by James R. Cahill on behalf of Cahill

Customs Consulting, Inc. We have considered the protest and our

decision follows.

FACTS:

The submitted sample is a single twisted fibrillated 100

percent polypropylene strip imported from Guatemala. The

protestant states that the strip measures approximately 9,000

decitex and has a twist of 36 turns per meter. It is

approximately 3 mm in apparent width (i.e. diameter).

The strip is manufactured by melting polypropylene pellets

and extruding it into a flat sheet, which is stretched and wound

on bobbins. The sheet is then twisted into its final form.

The merchandise was liquidated under subheading

5402.51.0000, Harmonized Tariff Schedule of the United States

Annotated (HTSUSA), which provides for synthetic filament yarn,

with a twist exceeding 50 turns/meter, of nylon or other

polyamides. The claimed classification is subheading

5607.49.1000, which provides for twine, cordage, ropes and

cables, of polyethylene or polypropylene, of wide nonfibrillated

strip.

ISSUE:

What is the proper tariff classification for the fibrillated

polypropylene strip?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the

General Rules of Interpretation (GRI). GRI 1 provides that

classification is determined first in accordance with the terms

of the headings of the tariff and any relative section or chapter

notes. Where goods cannot be classified on the basis of GRI 1,

the remaining GRI will be applied in order.

Section XI, Chapter 54, HTSUSA, provides for man-made

filaments. Within Chapter 54, Heading 5404 provides for

synthetic monofilament of 67 decitex or more and of which no

cross-sectional dimension exceeds 1 mm. It also provides for

strip and the like of synthetic textile materials of an apparent

width not exceeding 5 mm. The fact that strip of Heading 5404

appears in the Chapter providing for man-made filaments suggests

that it may be regarded as a type of filament. This

interpretation is supported by Heading 5407, which encompasses

woven fabrics of synthetic filament. Heading 5407 specifies that

it includes woven fabrics obtained from materials of heading

5404\. One such material is synthetic strip. Therefore, we

conclude that strip of Heading 5404 is a filament for tariff

purposes.

The Explanatory Note (EN) to Heading 5404, at page 754,

reads in pertinent part as follows:

\(1\) Synthetic monofilament. These are filaments

extruded as single filaments. They are classified here

only if they measure 67 decitex or more and do not

exceed 1 mm in any cross-sectional dimension.

Monofilaments of this heading may be of any cross-

sectional configuration and may be obtained not only by

extrusion but by lamination or fusion.

\(2\) Strip and the like, of synthetic textile

materials. The 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.

Provided their apparent width (i.e., in the folded,

flattened, compressed or twisted state) does not exceed

5 mm, this heading also covers:

\(i\) Strip folded along the length.

\(ii\) Flattened tubes, whether or not folded along the

length.

\(iii\) Strip, and articles referred to in (i) and (ii)

above, compressed or twisted. (Emphasis added).

This passage suggests that monofilament of Heading 5404 may

generally be of any cross-sectional shape. However, strip of

Heading 5404 must be flat and must be of an apparent width of 5

mm or less. Moreover, strip may be produced by extrusion. The

fact that strip has been twisted does not affect its

classification in Heading 5404. In this instance, the

merchandise satisfies the specified criteria for strip. It has

been produced by extrusion and is less than 5 mm in apparent

width. Before twisting the product is flat. Accordingly, it is

classifiable as strip of Heading 5404.

The strip was liquidated in Heading 5402, HTSUSA, which

provides for synthetic filament yarn, not put up for retail sale,

including synthetic monofilament of less than 67 decitex. The EN

to Heading 5402 states in part that:

This heading covers synthetic filament yarn (other than

sewing thread). It includes:

\(1\) Monofilament (monofil) of less than 67 decitex.

\(2\) Multifilament obtained by grouping together a

number of monofilaments (varying from two filaments to

several hundred) generally as they emerge from the

spinnerets.

Thus, Heading 5402 encompasses both monofilament and

multifilament. As noted above, strip of Heading 5404 is a type

of filament. In this case, the strip is not multifilament as it

has not been grouped together with other strip. Although it may

be viewed as a monofilament, it is more than 67 decitex and is

therefore not within the scope of Heading 5402. In addition, the

provision for strip within Heading 5404 describes the merchandise

more specifically than does Heading 5402, which provides

generally for synthetic filament yarn. For these reasons, we

find that the instant product is not classifiable in Heading

5402\.

Protestant claims that the subject merchandise is properly

classified in Chapter 56, Heading 5607, HTSUSA, which describes

twine, cordage, ropes and cables. Section XI, Note 3(A),

provides in pertinent part that:

For the purposes of this section, and subject to the

exception in paragraph (B) below, yarns (single,

multiple (folded) or cabled) of the following

descriptions are to be treated as \"twine, cordage,

ropes and cables\":

\* \* \*

\(b\) Of man-made fibers (including yarn of two or

more monofilaments of chapter 54), measuring

more than 10,000 decitex.

The legal note states that man-made fibers measuring more than

10,000 decitex are to be treated as twine, cordage, ropes and

cables of Heading 5607, HTSUSA. In addition, the General

Explanatory Note (EN) to section XI, part I(B)(2), at page 708,

contains a table which pertains to the classification of yarns,

twine, cordage, rope and cables of textile material. This table

also indicates that man-made fibers measuring more than 10,000

decitex are classified as twine, cordage, ropes and cables of

heading 5607, HTSUSA. Therefore, if the instant strip is a man-

made fiber it will be classified in Heading 5607 only if it

measures more than 10,000 decitex.

Chapter 54, Note 1, HTSUSA, reads in pertinent part 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, such as

polyamides, polyesters, polyurethanes or polyvinyl

derivatives;

\* \* \*

The terms \"synthetic\" and \"artificial\", used in

relation to fibers, mean: synthetic: fibers as

defined at (a). (Emphasis added).

In addition, the General EN to Chapter 54, at page 749,

states in part that:

Under Note 1 to Chapter 54, the term \"man-made fibres,\"

when used in Chapters 54 and 55 or elsewhere in the

Nomenclature, means filaments or staple fibres composed

of organic polymers produced by manufacturing

processes, either by:

\(1\) Polymerisation (see the General Explanatory Note

to Chapter 39) of organic monomers (synthetic fibres).

(Emphasis added).

Taken together, the legal and explanatory notes indicate that for

tariff purposes man-made fibers include synthetic fibers and

filaments. Furthermore, the General Explanatory Note (EN) to

Chapter 54, at page 749, provides that a polypropylene filament

is a type of synthetic filament. Therefore, polypropylene

filaments are man-made fibers.

In this instance, the submitted sample is polypropylene

strip measuring less than 10,000 decitex. As strip of Heading

5404 is a type of filament, the instant strip is a man-made

fiber. Pursuant to Section XI, Note 3(A), and the General EN to

Section XI, man-made fibers measuring less than 10,000 decitex

are not classifiable as twine, cordage, ropes and cables of

Heading 5607. As the instant strip measures less than 10,000

decitex, it cannot be classified within Heading 5607.

Protestant resists this finding on several grounds. First,

our attention is directed to the General EN to Section XI, which

states, at pages 705 and 707, that Chapters 50 to 55, HTSUSA, are

reserved generally for raw materials such as yarns. Protestant

contends the instant strip is not a raw material and therefore

cannot be classified in Chapter 54. However, the General EN to

Section XI, at page 707, states that yarns include filaments of

Headings 5402 through 5405. As we have previously established

that strip of Heading 5404 is a type of filament, it is a yarn

for tariff purposes.

Second, protestant observes that generally Chapters 50 to 55

exclude products that are \"made up,\" as that term is defined in

Note 7 to Section XI, HTSUSA. Specifically, Section XI, Note 8

states:

Chapters 50 to 55 and, except where the context

otherwise requires, chapters 56 to 60, do not apply to

goods made up within the meaning of note 7 above.

Chapters 50 to 55 do not apply to goods of chapters 56

to 59.

Protestant argues that the strip is made up pursuant to Section

XI, Note 7(b), which states that \"made up\" includes products

produced in a finished state, ready for use. As the strip will

not be further processed after importation, protestant reasons

that it is excluded from Chapter 54.

Note 7(b) to Section XI sets forth examples of products

which are \"made up\" in the sense that they are ready for use:

dusters, towels, tablecloths, scarf squares, blankets. These

exemplars are lengths of fabric suitable for direct use as

articles. In this case, the strip is not imported as a fabric

suitable for direct use. Rather, it is in the form of a yarn.

For this reason, we conclude that the strip is not \"made up\"

under the terms of Section XI, Note 7(b).

Third, protestant refers to the table found in the General

EN to Section XI, at page 708. As previously noted, this table

indicates that only man-made fibers measuring over 10,000 decitex

are classifiable in Heading 5607. Protestant urges us to

disregard the information contained in the table. However, the

10,000 decitex standard for man-made fibers is codified as Note

3(A)(b), Section XI. Therefore, it is binding legal authority.

Finally, protestant has submitted several of our prior

rulings, as well as Treasury Decision 85-183, which indicate that

fibrillated polypropylene strip has been classified as twine or

cordage in the past. We recognize that polypropylene strip may

be classified in Heading 5607, HTSUSA. However, pursuant to the

foregoing legal and explanatory notes, man-made fibers must

measure over 10,000 decitex in order to qualify for such

treatment.

HOLDING:

Based on the foregoing discussion, the subject merchandise

is classifiable in Subheading 5404.90.0000, HTSUSA, which

provides for 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: other. The

applicable rate of duty for such goods which are the product of

Guatemala is Free under the Generalized System of Preferences.

Since re-classification of the merchandise as indicated

above will result in the same rate of duty as claimed you are

instructed to allow the protest in full.

In accordance with Section 3A(11)(b) of Customs Directive

099 3550-065, dated August 4, 1993, Subject: Revised Protest

Directive, this decision should be mailed by your office 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 the decision the Office of Regulations and

Rulings will take steps to make the decision available to Customs

personnel via the Customs Rulings Module in ACS and the public

via the Diskette Subscription Service, Lexis, Freedom of

Information Act and other public access channels.

Sincerely,

John A. Durant, Director