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HQ 953689


September 30, 1993

CLA-2 CO:R:C:T 953689 BC

CATEGORY: CLASSIFICATION

TARIFF NO.: 5208.32.3040

District Director of Customs
U.S. Customs Service
6269 Ace Industrial Drive
Milwaukee, WI 53237

RE: Application for further review of protest no. 3701-92- 100070; classification of textile polishing cloth impregnated with polishing compound; 100% cotton polishing cloth; imported on rolls; Legal Note 2(a)(1) of Chapter 59; Legal Note 5(a) of Chapter 59; visible to the naked eye

Dear Sir:

This responds to the referenced protest and application for further review. We have reviewed all relevant materials and our decision follows.

FACTS:

PROTESTANT is an importer of textile materials made of 100% cotton and impregnated with a metal polishing compound. It is imported on rolls and is cut to proper length after entry. A small piece of the material was submitted with the protest as a sample. A box of the kind the cloth is packaged in (for retail sale) after cutting was also submitted. The box has printed on the front the following words that describe the polishing cloth: "Silver Care Cloth" and "Beautifies and Protects the finest Silver, Silver Plate and Gold." On the back, the following is printed: "This high quality cloth is made from 100% English cotton impregnated with . . . [producer's] exclusive cleaning, polishing and anti-tarnish agents. Ideal for dusting and cleaning lightly tarnished silver, silver plate and gold. Polishes to a brilliant shine." The Customs lab examined a sample of the cloth submitted with the protest and concluded that it is a "piece of blue dyed woven fabric impregnated with a metal polishing material," 100% cotton, plain weave and 181 grams per square meter (Laboratory Report of October 28, 1992, Lab. No. 3- 93-10001-001).

The merchandise was entered on May 5, 1992. The entry was liquidated on August 7, 1992, and this protest was timely filed on September 21, 1992.

The merchandise was classified at liquidation under subheading 5208.31.8090, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), covering certain woven fabrics of cotton, plain weave, weighing not more than 100 grams per square meter, dutiable at 14.7% ad valorem. PROTESTANT contends that the merchandise should be classified under subheading 5903.90.1000, HTSUSA, as certain textile (cotton) fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902, dutiable at 5.3% ad valorem.

You have indicated in this protest, and you recommend accordingly, that the merchandise should be classified under subheading 5208.32.3040, HTSUSA, as certain woven fabrics of cotton, plain weave, weighing more than 100 grams per square meter, sheeting, dutiable at 9.6% ad valorem. You explained that this classification is supported by the Customs laboratory's analysis of the sample submitted with this protest. Since the sample was not submitted, though requested, in conjunction with the liquidation, the classification at liquidation was not accurate.

ISSUE:

What is the proper classification for the merchandise at issue: 100% cotton fabric impregnated with a metal polishing compound and imported on rolls?

LAW AND ANALYSIS:

PROTESTANT contends that the classification at liquidation was incorrect. You concede that the classification at liquidation was incorrect. However, PROTESTANT asserts that subheading 5903.90.1000, HTSUSA, is the correct classification, while you assert that subheading 5208.32.3040, HTSUSA, is the correct classification.

Heading 5903, HTSUSA, pertains to textile fabrics impregnated, coated, covered or laminated with plastics. The protest fails to identify the character of the polishing compound that impregnates the cloth. Yet, that the compound is a plastic is implicit in PROTESTANT's assertion that heading 5903, HTSUSA, is applicable. If the compound is a plastic, Legal Note 2(a)(1), Chapter 59, HTSUSA, pertaining to textile fabrics impregnated, coated, covered or laminated with plastics, is applicable. The note provides that any impregnation, coating, covering or lamination must be visible to the naked eye. The compound here is not visible to the naked eye; therefore, if the compound is a plastic, heading 5903, HTSUSA, is not applicable.

If the compound is other than a plastic, heading 5907, HTSUSA, is suggested as a possible alternative. It covers textile fabrics otherwise impregnated, coated or covered. Yet, Legal Note 5(a), Chapter 59, HTSUSA, applicable to heading 5907, HTSUSA, provides that any impregnation, coating or covering must be visible to the naked eye. Since the compound is not visible to the naked eye, heading 5907, HTSUSA, would be inapplicable.

With the Customs laboratory report as support, we believe that classification under 5208.32.3040, HTSUSA, is correct.

HOLDING:

The cotton textile polishing cloth, impregnated with a metal polishing compound and imported on rolls, is classifiable under subheading 5208.32.3040, HTSUSA. The applicable duty rate is 9.6% ad valorem and the applicable textile quota category is 313.

Therefore, this protest is DENIED in part and APPROVED in part. It is denied with respect to PROTESTANT's claim that the fabric should be classified under subheading 5903.90.1000, HTSUSA, and it is approved with respect to PROTESTANT's claim that classification under subheading 5203.31.8090, HTSUSA, is incorrect. Accordingly, the entry will be reliquidated and the polishing fabric classified under subheading 5208.32.3040, HTSUSA. Any duties due to PROTESTANT should be paid accordingly. Please provide a copy of this decision to PROTESTANT, along with the CF 19, Notice of Action.

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 the subject of frequent negotiations 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 issuance of the U.S. Customs Service, which is updated weekly and is available at the 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 the local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director

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