HQ 0950498 - Poultry curtain material; coating not visible to the naked eye; HRL 088313, HRL 950542 cited; HRL 083513 revoked. - United States International Trade Commision Rulings

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HQ 950498

March 18, 1992

CLA-2 CO:R:C:T 950498 CRS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6307.90.9480

David R. Amerine, Esq.
Brownstein Zeidman and Schomer
Suite 900
1401 New York Avenue, N.W.
Washington, D.C. 20005-2102

RE: Poultry curtain material; coating not visible to the naked eye; HRL 088313, HRL 950542 cited; HRL 083513 revoked.

Dear Mr. Amerine:

We have had occasion to review Headquarters Ruling Letter (HRL) 083513 dated January 9, 1990, issued on behalf of your client, Calsak Corporation, and have determined that the ruling is in error. Our decision follows below.

FACTS:

HRL 083513 concerned the classification of poultry curtain material under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). The poultry curtain material at issue was woven from clear denier polyethylene textile strips with either a 10 x 10 or 8 x 8 count. Both sides of the material had been laminated with a clear polyethylene film, the weight of which did not exceed 70 percent of the total weight of the material. There was a two inch pocket hem sewn along the length of one side of the material through which a cable could be run in order to permit the material to be hung on the sides of poultry houses to provide protection from the elements and to help control temperature inside the houses. The material was classified in subheading 3926.90.9050, HTSUSA, under the provision for other articles of plastics...; other; other; other.

ISSUE:

The issue presented is whether the poultry curtain material of HRL 083513 was properly classifiable as an other article of plastics.

LAW AND ANALYSIS:

Heading 5903, HTSUSA, provides for, inter alia, textile fabrics coated or laminated with plastics. Note 2(a)(3), Chapter 59, HTSUSA, states that heading 5903 covers all textile fabrics coated or laminated with plastics other than those in which the textile fabric is entirely coated on both sides with plastics. Provided the impregnation or coating can be seen with the naked eye, such fabrics are classifiable in heading 3921, HTSUSA.

The instant poultry curtain material is coated or laminated on both sides with plastics. However, in HRL 088313 dated August 2, 1991, we held that unhemmed fabric otherwise identical to the poultry curtain material in question was not classifiable in heading 3921 since the coating or lamination could not be seen by the naked eye. Accordingly, it was classified in heading 5407, HTSUSA, as a woven fabric of synthetic filament yarn. See also HRL 950942 dated March 2, 1992. Consequently, the instant poultry curtain material is not classifiable as an article of plastics but as an article of textiles. HRL 088399 dated May 15, 1991.

HOLDING:

The poultry curtain material in question is classifiable in subheading 6307.90.9480, HTSUSA, under the provision for other made up articles, including dress patterns; other; other; other; other. It is dutiable at the rate of 7 percent ad valorem.

In order to insure uniformity in the classification of this merchandise we are revoking HRL 083513 to reflect the above classification effective with the date of this letter. However, if, after your review, you disagree with the legal basis for our decision, we invite you to submit any arguments you might have with respect to this matter for our review. Any submission you wish to make should be received within thirty days of the date of this letter.

This notice to you should be considered a revocation of HRL 083513 under 19 CFR 177.9(d)(1). It will not be applied retroactively to HRL 083513 (19 CFR 177.9(d)(2)) and will not affect past transactions for the importation of your client's merchandise under that ruling. However, for the purposes of future transactions in merchandise of this type, HRL 083513 will not be valid precedent. We recognize that pending transactions may be adversely affected by this revocation in that current contracts for importations arriving at a port will be classified in conformity with this decision. If such a situation arises, your client may, at its discretion, notify this office and apply for relief from the binding effects of this decision as may be warranted by the circumstances. However, please be advised that in some instances involving import restraints, such relief may require separate approvals from other government agencies.

Sincerely,

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