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HQ 084285


JULY 20, 1989

CLA-2 CO:R:C:G 084285 PR

CATEGORY: CLASSIFICATION

TARIFF NO.: 5407.20; 6306.12.00

Mr. Jay Shynn, General Manager
Kotap America Ltd.
10 Bayview Avenue
Lawrence, N.Y. 11559

RE: Classification of Tarpaulin Material and Finished Tarpaulins

Dear Mr. Shynn:

This ruling is in response to your request of March 22, 1989, concerning the tariff status of certain material and tarpaulins made from that material, both produced in either Indonesia or Brazil.

FACTS:

Two samples were submitted. Each is a polyethylene woven fabric of clear transparent textile strips. One sample, with a 5x5 weave per square inch, is stated to be coated on one side, presumeably with polyethylene plastics material. The other, an 8x8 weave per square inch, is stated to be coated on both sides. The transparent plastics applications can not be seen with the naked eye, even though the surfaces of the 8x8 weave fabric have a smooth texture.

ISSUE:

The issues presented is whether the submitted samples are coated with plastics for the purposes of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

LAW AND ANALYSIS:

Note 2 to Chapter 59, HTSUSA, which defines the coverage of Heading 5903, under which fabrics coated, covered, impregnated, or laminated with plastics are classifiable, 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 * * * for the purpose of this provision, no account should be taken of any resulting change of color;

This is not the same test that existed under the TSUSA. There, the plastics application was only required to visibly affect the surface of a fabric, a criterion which the courts interpreted as including rendering the fabric visibly stiffer. Under the TSUSA, the courts specifically stated that a coating need not be visible to the naked eye (or even under magnification). United States v. H. Rosenthal Co., 67 CCPA 8, C.A.D. 1236 (1979). Accordingly, the HTSUSA standard that the plastics be "seen with the naked eye" is substantially different and more difficult to satisfy than the TSUSA criteria.

Customs is of the view that no account should be taken of any resulting change in only shine, reflectivity, dullness, or other property which causes the viewer to see the effect rather than presence of plastics material. The wording of Chapter 59, Note 2(a)(1) does not consider the fact that the same amount of plastics application may be more visible on one fabric, or on one color fabric, than on another. Each determination of the visibility of the plastics on a fabric will be made on the basis of the characteristics of the specific fabric being ruled upon.

On the basis of the above, the sample fabrics do not qualify as coated, covered, impregnated, or laminated fabrics under the provisions of the HTSUSA.

HOLDING:

Material, as represented by the submitted samples, is classifiable under the provision for woven fabrics obtained from strip or the like, in Subheading 5407.20.0000, HTSUSA, with duty at the rate of 17 percent ad valorem. Textile restraint category 620 is applicable to merchandise classifiable under that provision.

Tarpaulins made from that material would be classifiable under the provision for tarpaulins of synthetic fibers, in Subheading 6306.12.0000, HTSUSA, with duty at the rate of 10 percent ad valorem. Textile restraint category 669 is applicable to merchandise classifiable under that provision.

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 importing the merchandise to determine the current applicability of any import restraints or requirements.

Sincerely,

John Durant, Director

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