CLA-2 CO:R:C:T 953689 BC
District Director of Customs
U.S. Customs Service
6269 Ace Industrial Drive
Milwaukee, WI 53237
RE: Application for further review of protest no. 3701-92-
100070; classification of textile polishing cloth impregnated
with polishing compound; 100% cotton polishing cloth; imported on
rolls; Legal Note 2(a)(1) of Chapter 59; Legal Note 5(a) of
Chapter 59; visible to the naked eye
Dear Sir:
This responds to the referenced protest and application for
further review. We have reviewed all relevant materials and our
decision follows.
FACTS:
PROTESTANT is an importer of textile materials made of 100%
cotton and impregnated with a metal polishing compound. It is
imported on rolls and is cut to proper length after entry. A
small piece of the material was submitted with the protest as a
sample. A box of the kind the cloth is packaged in (for retail
sale) after cutting was also submitted. The box has printed on
the front the following words that describe the polishing cloth:
"Silver Care Cloth" and "Beautifies and Protects the finest
Silver, Silver Plate and Gold." On the back, the following is
printed: "This high quality cloth is made from 100% English
cotton impregnated with . . . [producer's] exclusive cleaning,
polishing and anti-tarnish agents. Ideal for dusting and
cleaning lightly tarnished silver, silver plate and gold.
Polishes to a brilliant shine." The Customs lab examined a
sample of the cloth submitted with the protest and concluded that
it is a "piece of blue dyed woven fabric impregnated with a metal
polishing material," 100% cotton, plain weave and 181 grams per
square meter (Laboratory Report of October 28, 1992, Lab. No. 3-
93-10001-001).
The merchandise was entered on May 5, 1992. The entry was
liquidated on August 7, 1992, and this protest was timely filed
on September 21, 1992.
The merchandise was classified at liquidation under
subheading 5208.31.8090, Harmonized Tariff Schedule of the United
States Annotated (HTSUSA), covering certain woven fabrics of
cotton, plain weave, weighing not more than 100 grams per square
meter, dutiable at 14.7% ad valorem. PROTESTANT contends that
the merchandise should be classified under subheading
5903.90.1000, HTSUSA, as certain textile (cotton) fabrics
impregnated, coated, covered or laminated with plastics, other
than those of heading 5902, dutiable at 5.3% ad valorem.
You have indicated in this protest, and you recommend
accordingly, that the merchandise should be classified under
subheading 5208.32.3040, HTSUSA, as certain woven fabrics of
cotton, plain weave, weighing more than 100 grams per square
meter, sheeting, dutiable at 9.6% ad valorem. You explained that
this classification is supported by the Customs laboratory's
analysis of the sample submitted with this protest. Since the
sample was not submitted, though requested, in conjunction with
the liquidation, the classification at liquidation was not
accurate.
ISSUE:
What is the proper classification for the merchandise at
issue: 100% cotton fabric impregnated with a metal polishing
compound and imported on rolls?
LAW AND ANALYSIS:
PROTESTANT contends that the classification at liquidation
was incorrect. You concede that the classification at
liquidation was incorrect. However, PROTESTANT asserts that
subheading 5903.90.1000, HTSUSA, is the correct classification,
while you assert that subheading 5208.32.3040, HTSUSA, is the
correct classification.
Heading 5903, HTSUSA, pertains to textile fabrics
impregnated, coated, covered or laminated with plastics. The
protest fails to identify the character of the polishing compound
that impregnates the cloth. Yet, that the compound is a plastic
is implicit in PROTESTANT's assertion that heading 5903, HTSUSA,
is applicable. If the compound is a plastic, Legal Note 2(a)(1),
Chapter 59, HTSUSA, pertaining to textile fabrics impregnated,
coated, covered or laminated with plastics, is applicable. The
note provides that any impregnation, coating, covering or
lamination must be visible to the naked eye. The compound here
is not visible to the naked eye; therefore, if the compound is a
plastic, heading 5903, HTSUSA, is not applicable.
If the compound is other than a plastic, heading 5907,
HTSUSA, is suggested as a possible alternative. It covers
textile fabrics otherwise impregnated, coated or covered. Yet,
Legal Note 5(a), Chapter 59, HTSUSA, applicable to heading 5907,
HTSUSA, provides that any impregnation, coating or covering must
be visible to the naked eye. Since the compound is not visible
to the naked eye, heading 5907, HTSUSA, would be inapplicable.
With the Customs laboratory report as support, we believe
that classification under 5208.32.3040, HTSUSA, is correct.
HOLDING:
The cotton textile polishing cloth, impregnated with a metal
polishing compound and imported on rolls, is classifiable under
subheading 5208.32.3040, HTSUSA. The applicable duty rate is
9.6% ad valorem and the applicable textile quota category is 313.
Therefore, this protest is DENIED in part and APPROVED in
part. It is denied with respect to PROTESTANT's claim that the
fabric should be classified under subheading 5903.90.1000,
HTSUSA, and it is approved with respect to PROTESTANT's claim
that classification under subheading 5203.31.8090, HTSUSA, is
incorrect. Accordingly, the entry will be reliquidated and the
polishing fabric classified under subheading 5208.32.3040,
HTSUSA. Any duties due to PROTESTANT should be paid accordingly.
Please provide a copy of this decision to PROTESTANT, along with
the CF 19, Notice of Action.
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 the subject of frequent negotiations and
changes, to obtain the most current information available, we
suggest that you check, close to the time of shipment, the Status
Report on Current Import Quotas (Restraint Levels), an issuance
of the U.S. Customs Service, which is updated weekly and is
available at the local Customs office.
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 the local
Customs office prior to importing the merchandise to determine
the current status of any import restraints or requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division