HQ 083013: Classification of irrigation dam material

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                     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