CLA-2 CO:R:C:T 957378 SK
District Director
U.S. Customs Service
1000 Second Avenue, ste.2200
Seattle, WA 98104-1049
RE: Decision on Application for Further Review of Protest No. 3004-94-100147; classification of
"coated fabric"; coating must be visible to the naked eye; Note 2(a)(1) to Chapter 59; subheading
5903.90.2500, HTSUSA; woven fabric of polyethylene strips coated on one side with white
opaque polyethylene; fabric is visibly coated if the weave of the fabric is obscured by the coating..
Dear Sir:
This is a decision on application for further review of a protest timely filed by Norman G.
Jensen, Inc., on behalf of their client, Fabrene, Inc., on August 8, 1994, against your decision
regarding the classification of coated fabric. Two entries of the subject merchandise were entered
at the port of Blaine, Washington on March 11 and 15, 1994. Both entries were liquidated on
June 17, 1994.
FACTS:
The merchandise at issue is a plain woven fabric made of polyethylene strips that have
been coated on one side with a white, opaque application of polyethylene. The strips do not
exceed 5 millimeters in width.
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Protestant states that this merchandise is classifiable under subheading 5903.90.2500,
Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for
textile fabrics of man-made fibers, impregnated, coated, covered or laminated with plastics,
dutiable at a rate of 8.4 percent ad valorem. The attendant textile quota category is 229.
Customs liquidated the subject merchandise under subheading 5407.20.0000, HTSUSA,
as uncoated woven fabric obtained from strips and the like. The applicable duty rate is 15.3
percent ad valorem and the textile quota category is 620.
ISSUE:
Whether the white plastic coating on the fabric at issue is visible to the naked eye so as to
warrant classification under heading 5903 of the HTSUSA?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is governed by the General Rules of
Interpretation (GRI's). GRI 1 requires that classification be determined according to the terms of
the chapter notes and, unless otherwise required, according to the remaining GRI's. Where goods
cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not
otherwise require, the remaining GRI's may be applied, taken in order.
Heading 5903, HTSUSA, provides for textile fabrics impregnated, coated, covered or
laminated with plastics, other than those of heading 5902. The scope of heading 5903 is
restricted by Note 2 to Chapter 59, HTSUSA, which states:
"[H]eading 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:
(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."
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As set forth supra, the sole criterion upon which Customs is to determine whether fabric is
coated for purposes of classification under heading 5903, HTSUSA, is clear and unambiguous:
fabric is classifiable under heading 5903 if the plastic coating is visible to the naked eye. This
office has established criterion by which Customs will deem coating visible to the naked eye. In
Headquarters Ruling Letters (HRL's) 083127, dated November 8, 1989, and 087668, dated
January 9, 1991, this office noted that where coating served to "blur" or "obscure" a fabric's
underlying weave, the fabric was deemed visibly coated for purposes of classification within
heading 5903, HTSUSA.
In applying this visibility standard to the subject fabric, we are of the opinion that the
white polyethylene coating blurs the underlying weave of the polyethylene strips. A visual
comparison of the coated and uncoated sides yields the finding that the coated side is significantly
smoother than the uncoated side and the coating has served to obscure the fabric's weave, thus
rendering the polyethylene coating visible to the naked eye.
HOLDING:
The subject fabric is classifiable under subheading 5903.90.2500, HTSUSA, which
provides for "[T]extile fabrics impregnated, coated, covered or laminated with plastics, other than
those of heading 5902: other: of man-made fibers: other: other," dutiable at a rate of 8.4 percent
ad valorem. The textile quota category is 229.
As the rate of duty under the classification indicated above is lower than the rate of duty
under which the subject entries were liquidated, you are instructed to grant the protest in full.
A copy of this decision should be attached to the Form 19 and provided to the protestant
as part of the notice of action on the protest. In accordance with Section 3A(11)(b) of Customs
Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision
should be mailed by your office to the protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with this decision must be accomplished prior to the
mailing of the decision.
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Sixty days from the date of this decision, the Office of Regulations and Rulings will take
steps to make the decision available to Customs personnel via the Customs Rulings Module in
ACS and to the public via the Diskette Subscription Service, Freedom of Information Act and
other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division
cc: Joe Burbach
Blaine Supervisory Import Specialist
U.S. Customs Service
9901 Pacific Hwy.
Blaine, WA 98230
Att'n: Protest Unit