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HQ 950542


March 2, 1992

CLA-2 CO:R:C:T 950542 SK

CATEGORY: CLASSIFICATION

TARIFF NO.: 5407.20.0000

David R. Amerine
Claudia G. Pasche
Brownstein Zeidman and Lore
1401 New York Avenue, N.W.
Washington, D.C. 20005-2102

RE: Reconsideration of HRL 088313 (8/2/91); affirmed; polyethylene coating on fabric not visible to naked eye; Note 2(a)(3), Chapter 59; 5407, HTSUSA

Dear Mr. Amerine and Ms. Pasche:

This is in response to your letters of October 16, 1991, and February 25, 1992, requesting reconsideration of Headquarters Ruling Letter (HRL) 088313, dated August 2, 1991. This request, made on behalf of your client, Calsak Corporation, concerns the classification of plastic-coated fabric. A plastic-coated sample was submitted for examination and, for comparison purposes, an uncoated sample and a sample with coating on only one side.

FACTS:

The article at issue is sheeting material woven from clear 1,000 denier polyethylene textile strips with either a 10-by-10 or an 8-by-8 count. Both sides of the polyethylene textile material have been extrusion-coated with a clear, thin polyethylene film of .032 mm thickness.

Headquarters Ruling Letter (HRL) 087253, dated June 1, 1990, classified the subject merchandise under heading 3921, HTSUSA. HRL 087253 was subsequently revoked by HRL 088313, which held that the coating was not visible and classified the subject merchandise under heading 5407, HTSUSA.

ISSUE:

Whether the fabric at issue is considered coated under Chapter 59, Note 2(a), of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), such that it is classifiable as a coated fabric of heading 5903, HTSUSA?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI's), taken in order.

Chapter 59 of the Tariff Schedule provides for impregnated, coated, covered or laminated textile fabrics. Chapter Note 2(a)(3) to this section excludes products in which the textile fabric is coated or covered on both sides with plastic; such products are classifiable within Chapter 39 provided that such coating or covering can be seen with the naked eye with no account being taken of any resulting change of colour.

Heading 3921, HTSUSA, covers other plates, sheets, film, foil and strip, of plastics. As noted supra, Chapter 39 applies only to those textile fabrics that are coated on both sides with plastics and where the plastic coating is discernable to the naked eye. If, upon unaided visual examination, there is the suggestion of the presence of plastic coating , it is then within Customs' discretion to examine the fabric under magnification. See HRL 082644 of March 2, 1990.

The sole criterion upon which Customs is to determine whether fabric is coated for purposes of classification under heading 3921, HTSUSA, is clear and unambiguous: fabric is coated and is classifiable in Chapter 39 if the plastic coating is visible to the naked eye. This standard does not allow the examiner to take the "effects" of plastic into account. Plastic coating will often lend a sheen to fabric, result in a change of color, or increase a fabric's stiffness; these are factors which, while indicative of the presence of plastic, may not be taken into account in determining whether the plastic itself is visible to the naked eye.

In the instant analysis, it is abundantly clear that the coated sample exhibits greater stiffness and shine than the uncoated sample. It is also apparent, however, that the plastic itself is not visible upon unaided examination of the fabric. It
is only the effects of the coating (i.e., the sheen and stiffness) which are discernable. As mentioned supra, the effects of plastic coating are not an acceptable basis upon which Customs may classify fabric as coated for purposes of Chapter 39, HTSUSA.

In your submission you assert that "plastic coating can be readily observed from an examination of the spaces between the woven material". Contrary to the fabric's appearance upon cursory examination, there are, in fact, no plastic-covered "spaces" in this material. The warp and weft of the fabric, and the fact that some strands are crimped, creates the impression of thicker, opaque strands of textile interwoven with thinner, more translucent strands, interspersed with spaces in which the plastic coating is visible. What is actually visible is interwoven strands of varying thickness; this is due to the fact that some of the strands are crimped and some are single ply. When these strands are crossed over one another, a weave is created which appears to be made up of darker strips and clear plastic-covered spaces. There are, in fact, no spaces and the actual plastic coating on the sample is not discernable with the naked eye.

You also submit, in your letter of February 25, 1992, that examination of Attachment 1 (a sample coated on one side only) first from the coated side, then from the uncoated side, renders the gaps in the weave visible. You assert that this test enables the observer to "easily confirm that the gaps that were observed through the coated side are not caused by the presence of a single polyethelene strip, but instead are caused by the absence of any material other than the plastic coating". Upon execution of this test, it is Customs' opinion that the plastic is still not rendered visible to the naked eye.

Similarly, we are unable to detect gaps in the weave of the submitted samples by removing one or more strips from the fabric and examining the ends of the loosened strips.

As mentioned above, the use of magnification is allowed when visual examination suggests the "presence" of plastic coating. Even assuming, arguendo, that there is the suggestion of plastic coating on this sample, our use of magnification, both on the surface of the fabric and in cross-section, did not render the plastic visible. All that is visible is the sheen on the textile strips, which is a mere effect.

In HRL 087253, Customs stated that the plastic coating was visible in cross-section when using magnification. Customs later revoked that ruling in HRL 088313. You note that no basis was provided for our new factual determination other than a brief statement asserting that "the coating is not visible to the naked eye". The rationale for Customs' revocation was based on a strict interpretation of Chapter Note 2(a) to Chapter 59, discussed above, and the fact that our determination in HRL 087253 was erroneous because it was merely the textile strips and the effect of the plastic coating that was the basis for holding that the coating was visible.

You mention in your submission that the plastic coating results in a "solid" surface without any visible gaps. While this true, it does not enable the examiner to better see the plastic and is not a valid criterion for determining that the fabric is coated.

You also assert that the weave of the sample coated fabric is "blurred" and you cite previous Headquarters rulings where that was used as the basis in determining that coating was visible upon examination of the coated sample, there is no evidence of any blurring effect. The underlying weave of the fabric is distinct. Moreover, when comparing the coated sample with the uncoated sample, both have equally distinct weaves.

The coating on the submitted sample is not visible to the naked eye. HRL 088313 was correct in its revocation of HRL 087253.

HOLDING:

The merchandise at issue is classifiable under subheading 5407.20.0000, HTSUSA, under the provision for woven fabrics of synthetic filament yarn...; woven fabrics obtained from strip and the like. It is dutiable at the rate of 17% ad valorem and is subject to textile quota category 620.

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 subject to frequent renegotiations and changes, to obtain the most current information available, we suggest you check, close to the time of shipment, the Status Report on Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service, which is available for inspection at your 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 your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,


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