CLA-2 CO:R:C:T 950542 SK
David R. Amerine
Claudia G. Pasche
Brownstein Zeidman and Lore
1401 New York Avenue, N.W.
Washington, D.C. 20005-2102
RE: Reconsideration of HRL 088313 (8/2/91); affirmed;
polyethylene coating on fabric not visible to naked eye;
Note 2(a)(3), Chapter 59; 5407, HTSUSA
Dear Mr. Amerine and Ms. Pasche:
This is in response to your letters of October 16, 1991,
and February 25, 1992, requesting reconsideration of Headquarters
Ruling Letter (HRL) 088313, dated August 2, 1991. This request,
made on behalf of your client, Calsak Corporation, concerns the
classification of plastic-coated fabric. A plastic-coated sample
was submitted for examination and, for comparison purposes, an
uncoated sample and a sample with coating on only one side.
FACTS:
The article at issue is sheeting material woven from clear
1,000 denier polyethylene textile strips with either a 10-by-10
or an 8-by-8 count. Both sides of the polyethylene textile
material have been extrusion-coated with a clear, thin
polyethylene film of .032 mm thickness.
Headquarters Ruling Letter (HRL) 087253, dated June 1,
1990, classified the subject merchandise under heading 3921,
HTSUSA. HRL 087253 was subsequently revoked by HRL 088313, which
held that the coating was not visible and classified the subject
merchandise under heading 5407, HTSUSA.
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ISSUE:
Whether the fabric at issue is considered coated under
Chapter 59, Note 2(a), of the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA), such that it is classifiable as
a coated fabric of heading 5903, HTSUSA?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is in
accordance with the General Rules of Interpretation (GRI's),
taken in order.
Chapter 59 of the Tariff Schedule provides for impregnated,
coated, covered or laminated textile fabrics. Chapter Note
2(a)(3) to this section excludes products in which the textile
fabric is coated or covered on both sides with plastic; such
products are classifiable within Chapter 39 provided that such
coating or covering can be seen with the naked eye with no
account being taken of any resulting change of colour.
Heading 3921, HTSUSA, covers other plates, sheets, film,
foil and strip, of plastics. As noted supra, Chapter 39 applies
only to those textile fabrics that are coated on both sides with
plastics and where the plastic coating is discernable to the
naked eye. If, upon unaided visual examination, there is the
suggestion of the presence of plastic coating , it is then
within Customs' discretion to examine the fabric under
magnification. See HRL 082644 of March 2, 1990.
The sole criterion upon which Customs is to determine
whether fabric is coated for purposes of classification under
heading 3921, HTSUSA, is clear and unambiguous: fabric is coated
and is classifiable in Chapter 39 if the plastic coating is
visible to the naked eye. This standard does not allow the
examiner to take the "effects" of plastic into account. Plastic
coating will often lend a sheen to fabric, result in a change of
color, or increase a fabric's stiffness; these are factors
which, while indicative of the presence of plastic, may not be
taken into account in determining whether the plastic itself is
visible to the naked eye.
In the instant analysis, it is abundantly clear that the
coated sample exhibits greater stiffness and shine than the
uncoated sample. It is also apparent, however, that the plastic
itself is not visible upon unaided examination of the fabric. It
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is only the effects of the coating (i.e., the sheen and
stiffness) which are discernable. As mentioned supra, the
effects of plastic coating are not an acceptable basis upon which
Customs may classify fabric as coated for purposes of Chapter 39,
HTSUSA.
In your submission you assert that "plastic coating can be
readily observed from an examination of the spaces between the
woven material". Contrary to the fabric's appearance upon
cursory examination, there are, in fact, no plastic-covered
"spaces" in this material. The warp and weft of the fabric, and
the fact that some strands are crimped, creates the impression of
thicker, opaque strands of textile interwoven with thinner, more
translucent strands, interspersed with spaces in which the
plastic coating is visible. What is actually visible is
interwoven strands of varying thickness; this is due to the fact
that some of the strands are crimped and some are single ply.
When these strands are crossed over one another, a weave is
created which appears to be made up of darker strips and clear
plastic-covered spaces. There are, in fact, no spaces and the
actual plastic coating on the sample is not discernable with the
naked eye.
You also submit, in your letter of February 25, 1992, that
examination of Attachment 1 (a sample coated on one side only)
first from the coated side, then from the uncoated side, renders
the gaps in the weave visible. You assert that this test
enables the observer to "easily confirm that the gaps that were
observed through the coated side are not caused by the presence
of a single polyethelene strip, but instead are caused by the
absence of any material other than the plastic coating". Upon
execution of this test, it is Customs' opinion that the plastic
is still not rendered visible to the naked eye.
Similarly, we are unable to detect gaps in the weave of the
submitted samples by removing one or more strips from the fabric
and examining the ends of the loosened strips.
As mentioned above, the use of magnification is allowed when
visual examination suggests the "presence" of plastic coating.
Even assuming, arguendo, that there is the suggestion of plastic
coating on this sample, our use of magnification, both on the
surface of the fabric and in cross-section, did not render the
plastic visible. All that is visible is the sheen on the textile
strips, which is a mere effect.
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In HRL 087253, Customs stated that the plastic coating was
visible in cross-section when using magnification. Customs later
revoked that ruling in HRL 088313. You note that no basis was
provided for our new factual determination other than a brief
statement asserting that "the coating is not visible to the naked
eye". The rationale for Customs' revocation was based on a
strict interpretation of Chapter Note 2(a) to Chapter 59,
discussed above, and the fact that our determination in HRL
087253 was erroneous because it was merely the textile strips and
the effect of the plastic coating that was the basis for holding
that the coating was visible.
You mention in your submission that the plastic coating
results in a "solid" surface without any visible gaps. While
this true, it does not enable the examiner to better see the
plastic and is not a valid criterion for determining that the
fabric is coated.
You also assert that the weave of the sample coated fabric
is "blurred" and you cite previous Headquarters rulings where
that was used as the basis in determining that coating was
visible upon examination of the coated sample, there is no
evidence of any blurring effect. The underlying weave of the
fabric is distinct. Moreover, when comparing the coated sample
with the uncoated sample, both have equally distinct weaves.
The coating on the submitted sample is not visible to the
naked eye. HRL 088313 was correct in its revocation of HRL
087253.
HOLDING:
The merchandise at issue is classifiable under subheading
5407.20.0000, HTSUSA, under the provision for woven fabrics of
synthetic filament yarn...; woven fabrics obtained from strip and
the like. It is dutiable at the rate of 17% ad valorem and is
subject to textile quota category 620.
The designated textile and apparel category may be
subdivided into parts. If so, 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 available for
inspection at your local Customs office.
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Due to the changeable 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