HQ 083740: Tariff Classification of Windbreaks

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 083740

                           May 4, 1989



CLA-2 CO:R:C:G   083740  PR

CATEGORY:  CLA

TARIFF NO.:  3926.90.9050

Mr. Frank Brennan
Mudge, Rose, Guthrie, Alexander & Ferdon
2121 K Street, N.W.
Washington, D.C.  20037

RE:  Tariff Classification of Windbreaks

Dear Mr. Brennan:

     This ruling is in response to your request, on behalf of
Fabrimetrics, Inc., concerning the tariff status of certain
windbreaks.

FACTS:

     The subject windbreaks are imported in widths of from 10 to
24 feet and in 100 foot lengths.  They are made from woven
polyethylene textile strips, laminated on both sides with a
milky white plastic film which is stated to be 0.03 mm thick and
which can be seen with the naked eye.  The two long edges have
been folded over a split film cord and heat sealed in place. This
is stated to be for the purpose of reinforcement and providing
added strength.  The merchandise is said to be sold to
contractors for use as protection from the weather during the
construction of multistory buildings.  A sample windbreak,
without the corded edges, was submitted with a previous inquiry.

ISSUE:

     The issues presented are whether the windbreaks are
classifiable as plastics or textile goods, and whether they are
made up articles or materials.

LAW AND ANALYSIS:


     Section XI of the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA) contains Chapter 59, where Heading 5903
is located.  That heading provides for textile fabrics
impregnated, coated, covered, or laminated with plastics.  Note
1(h) to Section XI provides that Section XI does not cover woven
fabrics impregnated, coated, covered, or laminated with
plastics, or articles thereof, of Chapter 39 (HTSUSA).

     However, Note 2(l) to Chapter 39, which contains the
provisions under which most plastics and plastic articles are
classifiable, provides that Chapter 39 does not cover goods of
Section XI.

     The chapter notes are essential to determine the
applicability of those two notes.  Note 2 to Chapter 59, HTSUSA,
states that Heading 5903 applies to:

     (a)  Textile fabrics, impregnated, coated, covered or
     laminated with plastics, whatever the weight per square
     meter and whatever the nature of the plastic material
     (compact or cellular), other than:

                    *         *         *

          (3) Products in which the textile fabric is either
          completely embedded in plastics or entirely coated or
          covered on both sides with such material, provided that
          such coating or covering can be seen with the naked eye
          with no account being taken of any resulting change of
          color (chapter 39);

                    *         *         *

     Note 2(a)(3) does not specifically include fabrics that have
been laminated on both surfaces with plastics.  However, the note
does include fabrics "covered" on both surfaces with plastics.
Under the Tariff Schedules of the United States Annotated
(TSUSA), the predecessor of the HTSUSA, coatings and laminations
were traditionally treated differently.  But there was no concept
of "covered" fabrics under the TSUSA.  Although a coating can be
less than a covering, both coatings and laminations are usually
forms of coverings.  The use of the word "covering" in the notes
to Chapters 56 and 59 evidences an express intention to treat
laminations and coatings alike.

     Accordingly, pursuant to Note 2, Chapter 59, textile
fabrics, such as here involved, laminated on both surfaces with
plastics that can be seen with the naked eye, otherwise than by a
change in color, are not provided for in Section XI.  They are
goods of Chapter 39 by operation of Note 1(h), Section XI.

     In Chapter 39, Heading 3921 provides for plates, sheets,
film, film, foil, and strips, of plastics, reinforced, laminated,
supported, or combined with other materials; and Heading 3926
provides for other articles of plastics.  Note 10, Chapter 39,
states, in essence, that Heading 3921 applies to goods whether or
not printed or otherwise surface worked, and whether or not cut
into rectangles, but not further worked, even if they have become
articles ready for use.

     In order to ascertain whether folding the longitudinal edges
over a cord and heat sealing the fold in place constitutes
"further working", we have consulted the Harmonized Commodity
Description and Coding System, Explanatory Notes, which are the
official interpretation of the HTSUSA at the international level
(the 4 and 6 digit headings).  The Explanatory Notes, at page
573, state:

        Plates, sheets, etc., whether or not surface-worked
     (including squares and other rectangles cut therefrom), with
     ground edges, drilled, milled, hemmed, twisted, framed or
     otherwise worked or cut into shapes other than rectangular
     (including square) are generally classified as articles of
     headings 39.18, 39.19 or 39.22 to 39.26.

     We have been unable to find any further elaboration on the
intended meaning and scope of the term "further worked".
Specifically, does the hemming have to be necessary, and do all
four sides have to be hemmed.  None of the rulings cited in the
incoming submission bear on this matter.  The only pertinent
precedential ruling, of which we are aware, is HRL 083013, dated
March 20, 1989.  In that ruling, Customs held that irrigation dam
material that had been hemmed along one lengthwise edge was
"further worked" because the hemming was done for a specific
utilitarian purpose and it was necessary for the intended used of
the merchandise.

     In the present circumstance, folding the lengthwise edges
over a cord and heat sealing those edges in place constitutes as
much of a hemming operation as that done in HRL 083013.  The
distinction between HRL 083013 and the instant situation is that
in HRL 083013, the merchandise was not useable without the
additional working.  This merchandise has been imported and used
for a period of time without the corded edges and the possibility
exists that the corded edges are a subterfuge to obtain a more
favorable tariff classification.

     As evidenced by HLR 083013, Customs believes that it is
unreasonable to require hemming on a specified number of edges.
Customs also believes that a producer has a right to change its
product in order to obtain more favorable tariff treatment, or to
improve its product.  In either event, it is the resulting effect
produced on the merchandise that governs the classification, not
the producer's reason for that change.

     In this instance, it appears that the corded edges do, in
fact, provide reinforcement and additional strength to the
imported merchandise, and that is Customs' sole consideration.
In our view, the functional hemming on the imported windbreaks
constitutes "further working" and precludes their classification
as material in Heading 3921.  The fact that the merchandise can
be cut up and used for other purposes is not a consideration
unless there is evidence establishing the imported merchandise is
not primarily used as windbreaks in its imported condition.

HOLDING:

     The subject merchandise, imported in 100 foot lengths with
man-made fiber cords inserted into heat-sealed hems which run the
full length of both lengthwise edges, is classifiable under the
provision for other articles of plastics, in Subheading
3926.90.9050, HTSUSA, with duty, as a product of Korea, at the
rate of 5.3 percent ad valorem.

                                   Sincerely,




                                   John Durant, Director
                                   Commercial Rulings Division