HQ 0088399 - Hemmed poultry curtain material of woven polyethylene strip coated on both sides with transparent plastic is classifiable in heading 3926 if the coating is visible to the naked eye and if the hemming has a practical or utilitarian purpose; if coating is deemed not visible to the naked eye and hemming has a practical or utilitarian purpose, poultry curtain material is classifiable in heading 6307; HRL 087253. - United States International Trade Commision Rulings

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HQ 088399

May 15, 1991

CLA-2 CO:R:C:T 088399 CRS

CATEGORY: CLASSIFICATION

TARIFF NO.: 3926.90.9050; 6307.90.9490

Ms. Liese Frankenstein
Emerald Coast Trading
P.O. Box 46281
Seattle, WA 98146

RE: Hemmed poultry curtain material of woven polyethylene strip coated on both sides with transparent plastic is classifiable in heading 3926 if the coating is visible to the naked eye and if the hemming has a practical or utilitarian purpose; if coating is deemed not visible to the naked eye and hemming has a practical or utilitarian purpose, poultry curtain material is classifiable in heading 6307; HRL 087253.

Dear Ms. Frankenstein:

This is in reply to your letter dated November 27, 1990, to our New York office, concerning the classification of a poultry curtain under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample was provided.

FACTS:

The merchandise in question is a plain woven material of polyethylene strip approximately 3 millimeters in width. The material contains ten strips per inch in the warp and ten strips per inch in the filling and is laminated on both sides with a polyethylene plastic coating thirty microns thick. The material is used to make poultry curtains to protect livestock from inclement weather.

After the material is coated, a two inch hem will be stitched along its length, thereby creating a pocket which will be used to open and close the finished curtain. The poultry curtain material will be imported in 100 to 600 foot lengths in widths ranging from three feet to twelve feet.

ISSUE:

Whether the polyethylene coating is visible to the naked eye such that the poultry curtain material, if unhemmed, would be classifiable in heading 3921, HTSUSA.

Whether, if hemmed, and coated with a polyethylene coating visible to the naked eye, the poultry curtain material is further worked such that it is classifiable in heading 3926, HTSUSA.

Whether hemmed poultry curtain material coated with a polyethylene coating that is not visible to the naked eye is made up such that it is classifiable in heading 6307, HTSUSA.

LAW AND ANALYSIS:

Heading 5903, HTSUSA, covers textile fabrics impregnated, coated, covered or laminated with plastics. The merchandise in question is a woven textile fabric made from polyethylene strip. Note 2(a), Chapter 59, HTSUSA, provides in pertinent part that heading 5903 applies to all coated textile fabrics 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 in color;

(3) Products in which the textile fabric is either completely embedded in plastics or entirely coated or covered on both sides with such material, provided that such coating or covering can be seen with the naked eye with no account being taken of any resulting change in color (chapter 39).

The instant material is entirely coated on both sides with plastic. If the coating is visible to the naked eye, the instant material is classifiable in Chapter 39 pursuant to Note 2(a)(3), Chapter 59. In certain circumstances, however, the naked eye test can be augmented by the use of magnification. In a memorandum dated March 14, 1988, to the Area Director of Customs, New York Seaport, file 081679, magnification was deemed allowable as an aid in determining whether what could be seen on the surface of a fabric was indeed a coating or merely the fabric itself. Nevertheless, before resorting to magnification, it is Customs' practice to examine fabrics with the naked eye alone to ascertain whether a coating is present. If nothing resembling a coating is present the fabric will not be deemed coated for classification purposes; but if a visual examination suggest the presence of a coating, it is within Customs' discretion to examine the fabric under magnification. See Headquarters Ruling Letter (HRL) 087668 dated January 9, 1991. Nevertheless, for the purposes of this ruling we express no opinion as to whether the coating applied to the instant merchandise is visible to the naked eye. The issue of whether the material is coated for tariff purposes remains before Headquarters for resolution.

Heading 3921, HTSUSA, covers other plates, sheets, film, foil and strip, of plastics. The fabric at issue is laminated on both sides with a clear polyethylene coating. If the coating were considered visible to the naked eye, the poultry material would be excluded from heading 5903 pursuant to Note 2, Chapter 59, HTSUSA.

The material in question, woven polyethylene fiber strip, is imported in 100 to 600 foot rolls and is hemmed. Note 10, Chapter 39, HTSUSA, provides:

In headings 3920 and 3921, the expression "plates, sheets, film, foil and strip" applies only to plates, sheets, film, foil and strip (other than those of chapter 54) and to blocks of regular geometric shape, whether or not printed or otherwise surface-worked, uncut or cut into rectangles (including squares) but not further worked (even if when so cut they become articles ready for use).

The purpose of the hem is to create a pocket to accommodate a cable and pulley rigging which will be used to open and close the curtain along its 100 to 600 foot length. The hemming operation therefore has a specific utilitarian purpose. In HRL 083013 dated March 20, 1989, we stated as follows with regard to hemmed irrigation material made from coated man-made fiber strips similar to the instant merchandise:

It is our view that when plastic sheeting has been hemmed along its entire length for a specific utilitarian purpose and the hemming is necessary for the intended use of the merchandise, that sheeting has been "further worked" ....

Accordingly, Customs considers the woven strip material at issue, which has been hemmed for a specific utilitarian purpose, to be further worked.

When further worked, strip of heading 3921 is generally classified in headings 3918, 3919 or 3922 to 3926. See the Explanatory Notes, General Explanatory Note, Chapter 39, 554, and EN 39.21, 573. Heading 3926, HTSUSA, is a residual provision covering other articles of plastics and articles of materials of headings 3901 to 3914. There are no more specific headings that apply to the woven strip; consequently, it is classifiable, if hemmed, and if the coating is visible for tariff purposes, in heading 3926, HTSUSA.

If the polyethylene coating is considered not visible to the naked eye, however, the poultry curtain material would be classifiable as an article of textile. Heading 6307, HTSUSA, provides for other made up articles. Note 7, Section XI, HTSUSA, defines the term "made up" in pertinent part as:

(b) Produced in the finished state, ready for use . . . ;

(c) Hemmed or with rolled edges . . . .

The poultry curtain is hemmed and is ready for use. Although the test for "made up" is different than the test for "further processed, Customs is of the view that the principle of HRL 083013 is equally applicable to heading 6307. Accordingly, the poultry curtain material which has been hemmed for a specific utilitarian purpose, would be considered a made up article of heading 6307 in the event that the polypropylene coating is deemed not visible to the naked eye.

HOLDING:

If coated on both sides with plastics that is visible to the naked eye, the hemmed poultry curtain material is classifiable in subheading 3926.90.9050, HTSUSA, under the provision for other articles of plastics and articles of other materials of headings 3901 to 3914; other; other; other. Articles in this subheading are dutiable at 5.3 percent ad valorem and are not subject to quota/visa requirements.

If coated, but where the coating is not considered visible to the naked eye, the hemmed poultry curtain material is classifiable in subheading 6307.90.9490, HTSUSA, under the provision for other made up articles, including dress patterns; other; other; other; other. Articles in this subheading are dutiable at the rate of 7 percent ad valorem and are not subject to quota/visa requirements.

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 that 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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