CLA-2 CO:R:C:G 087250 CC 084744 086130
Mr. Alan E. Desbarats
Product Manager
Fabrene, Inc.
2000 Argentia Road
Suite 201, Plaza 5
Mississauga, Ontario L5N 2R7
Canada
Re: Reconsideration of HRL 084744 and HRL 086130; clear
polyethylene coating on woven polyethylene fabric strips
not visible; fabric strips not classifiable in Heading 5903
Dear Mr. Desbarats:
This letter is in response to your inquiry requesting
reconsideration of Headquarters Ruling Letter (HRL) 084744, dated
August 29, 1989, and HRL 086130, dated March 1, 1990. Samples
were submitted with your request.
FACTS:
In HRL 084744 and HRL 086130, we decided that an application
of clear polyethylene on woven polyethylene fabric strips was
not visible to the naked eye, in application of Note 2 to
Chapter 59 of the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA). Therefore we ruled that the fabric
strips were not coated for classification purposes and were not
classifiable in Heading 5903, HTSUSA.
You have submitted four samples in your request for
reconsideration. Sample 1 is a woven fabric without any plastics
application and is submitted for reference purposes only. Sample
2 is composed of woven polyethylene fabric strips with an
application of 1 millimeter of clear polyethylene on one side; it
is Sample 6 of HRL 084744. Sample 3 has the same construction as
Sample 2, with the addition of an embossed finish on the plastics
application that imparts an anti-skid surface; it is Sample 8 of
the first inquiry letter of HRL 086130. Sample 4 has the same
construction as Sample 2, with the addition of 1 millimeter of
the polyethylene application on both sides; this sample was not
submitted for consideration in either HRL 084744 or HRL 086130.
You have requested that Samples 2, 3, and 4 be classified as
coated fabrics in Heading 5903, HTSUSA. We will not consider
Sample 4 in this ruling, since it was not considered in either
HRL 084744 or HRL 086130.
ISSUE:
Whether the merchandise at issue is classifiable in Heading
5903, HTSUSA, as textile fabrics impregnated, coated, covered or
laminated with plastics?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is in
accordance with the General Rules of Interpretation (GRI's),
taken in order. GRI 1 provides that classification shall be
determined according to the terms of the headings and any
relative section or chapter notes.
Note 2 to Chapter 59 states that Heading 5903 applies to the
following:
(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:
(1) Fabrics in which the impregnation, coating or
covering cannot be seen with the naked eye (usually
Chapters 50 to 55, 58 or 60); for the purpose of this
provision, no account should be taken of any resulting
change of color.
You contend that Samples 2 and 3 are coated with plastic
since uncoated spaces between the tapes of Sample 1 can be seen,
but no gaps between the tapes of Samples 2 and 3 are visible. In
addition, for Sample 3, the uncoated side appears glossy, but the
coated side is dull, and the embossed pattern is visible.
Therefore there are visible differences in comparing Sample 1
with the other samples.
You also cite Headquarters Ruling 73 0251, dated December
10, 1973, in support of your position. In that ruling we stated
that fabric would be considered coated if the yarns on the coated
surface were visible, but clearly not as visible in detail as the
yarns on the uncoated surface. You assert that the fabrics of
Samples 2 and 3 are less visible than the fabric of Sample 1.
You believe that although that ruling was issued under the old
tariff law, the rationale of that ruling is applicable under the
HTSUSA.
We have ruled under the HTSUSA that for a coating to be
visible, it must create a change in the surface character of the
fabric. We have carefully examined and reexamined the samples
and do not see a change in the surface area attributable to the
coating; we do not believe that the coating is visible. The
information provided indicates that Samples 2 and 3 contain
coating on one side. But for Sample 2, we are unable to
determine which side is coated; for Sample 3, although the
embossing treatment is visible, the plastic coating is not
visible. There may be visible differences in comparing Samples 2
and 3 with Sample 1, e.g., gaps between the tapes, but the test
is whether the coating on the particular sample at issue is
visible. Since we find no evidence in support of your claim that
the coating is visible, the samples at issue are not classifiable
in Heading 5903, HTSUSA.
Headquarters Ruling 73 0251 was issued under the Tariff
Schedules of the United States (TSUS). The merchandise
classified in that ruling was not similar to the merchandise at
issue in this case. In addition, the TSUS was replaced by the
HTSUSA on January 1, 1989; therefore, the above-cited ruling is
no longer binding.
Since the merchandise at issue is not classifiable in
Heading 5903, it is classified in Heading 5407, HTSUSA, which
provides for woven fabrics of synthetic filament yarn, including
woven fabrics obtained from materials of Heading 5404.
HOLDING:
Samples 2 and 3 are classified under subheading
5407.20.0000, HTSUSA, which provides for woven fabrics of
synthetic filament yarn, including woven fabrics obtained from
materials of Heading 5404, woven fabrics obtained from strip or
the like. The textile category is 620.
Articles that meet the definition of "goods originating in
the territory of Canada" (see General Note 3(c)(vii)(B), HTSUSA)
are subject to reduced rates of duty under the United States-
Canada Free Trade Agreement Implementation Act of 1988. If the
merchandise constitutes "goods originating in the territory of
Canada," the applicable rate of duty is normally 13.6 percent
ad valorem (otherwise, the general rate of duty is 17 percent
ad valorem).
HRL 084744, dated August 29, 1989, and HRL 086130, dated
March 1, 1990, are affirmed.
Sincerely,
John Durant, Director
Commercial Rulings Division