Classification of irrigation dam material

HQ 083013 March 20, 1989 CLA-2 CO:R:C:G 083013 PR; NY 825257 CATEGORY: Classification TARIFF NO: HTSUSA 3926.90.9050 Mr. John C. Schott Schott International, Inc. P.O. Box 7152 Akron, Ohio 44306-0152 RE: Classification of irrigation dam material Dear Mr. Schott: This is in reply to your letter of September 16, 1989, addressed to the our New York office, concerning the classification of irrigation dam material. Our ruling on the matter follows. FACTS: The merchandise consists of woven man-made fiber strips, coated, covered, or laminated on both sides with what is stated to be 0.04 mm of orange polyethylene plastics and which can be seen with the naked eye. It weighs about 4.5 ounces per square yard and will be imported in 150 foot rolls, allowing a multiple number of dams to be cut from each roll. The width of the imported rolls is not stated, but the submitted sample indicates a 64 inch width. One lengthwise edge is folded over on itself and hemmed to create an 8 inch pocket along the entire 150 foot length. This pocket is intended to allow the insertion of a 2-inch by 4-inch piece of wood to hold the dam in place. ISSUE: The issue presented is whether the hemming of an 8-inch pocket along one lengthwise edge prevents the merchandise from being classified as material and causes it to be classifiable as an article. - 2 - LAW AND ANALYSIS: Note 2(a)(3), Chapter 59, Section XI, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), provides, in essence, that fabrics which are completely embedded in plastics, or entirely covered or coated on both sides with plastics, are classifiable in Chapter 39 as plastics. While the woven strips are a textile material, since they are coated, covered, or laminated on both sides with plastics material that is visible to the naked eye, by virtue of Note 2(a)(3) and Section XI Note 1(h), HTSUSA, the merchandise, if a material, is classifiable under Heading 3921, HTSUSA, which provides for other other plastics sheets. However, Note 10 to Chapter 39 states that Heading 3921 applies to sheets or film "uncut or cut into rectangles (including squares) but not further worked." (bolding added) The Harmonized Commodity Description and Coding System Explanatory Notes, the official interpretation of the Harmonized System at the international level, specifically states that plastic plates, sheets, etc., classifiable in Heading 3921, which have been hemmed, are generally not classifiable in that heading. (at pg. 573) It is our view that when plastic sheeting has been hemmed along its entire length for a specific utilitarian purpose and the hemming is necessary for the intended use of the merchandise, that sheeting has been "further worked" and is prevented from classification in Heading 3921 by Note 10. HOLDING: The subject merchandise is an article for purposes of classification in Chapter 39. Since there is no specific provision in that chapter describing the merchandise, it is classifiable under the subheading for other articles of plastics, in 3926.90.9050, HTSUSA, with duty at the rate of 5.3 percent ad valorem. The merchandise is currently not subject to quota, visa, or export license requirements. Sincerely, John Durant, Director Commercial Rulings Division MEMO TO REVIEWERS 1. This ruling is contrary to the NIS's recommendation, but I believe it is clearly correct. 2. CITA has called on this matter and is quite concerned. Under the TSUSA, this merchandise was not subject to quota restraints and CITA does not want its status to change. The NIS's recommended classification would have made this merchandise subject to restraints. 3. The plastics on the subject merchandise is stated to be applied in a lamination process. I have taken the view, as expressed in a memo for Mr. Rosettie's approval which has apparently disappeared into a deep dark hole, that if a fabric is laminated on both sides with plastics and those laminations meet the visibility requirements for coatings, the fabric is "embedded" in plastics in accordance with Chapter 59 Note 2(a)(3). I think Section XI Note 1(h) supports this position by its reference to "laminated". Phil Robins