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HQ 956653




March 29, 1995

CLA-2 CO:R:C:T 956653 SK

CATEGORY: CLASSIFICATION

TARIFF NO.: 5209.31.6030

Area Director
U.S. Customs Service
Thomas P. O'Neill, Jr. Federal Bldg.
10 Causeway Street
Boston, MA 02222-1059

RE: Denial of protest; classification of fabric with an application of starch sizing later to be manufactured into abrasive cloth; 5209.31.6030; precluded from classification in heading 5907 because finished with a normal dressing having an amylaceous substance; Note 5(d) to Chapter 59; no substantiating evidence of an established and uniform practice.

Dear Sir:

This is a decision on application for further review of a protest timely filed on July 2, 1992, by Mr. Bruce A. Bell, Tower Group International/W.N. Proctor Division, on behalf of Plymouth Coated Products, against your decision regarding the classification of a dyed, plain weave cotton material with an application of starch sizing on one surface. The material is further fabricated after importation into an abrasive cloth by means of the addition of abrasive grit. The subject cloth was entered at the port at Boston on May 28, 1991. The entry was liquidated June 19, 1992, under subheading 5209.31.6030, Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

Coated and uncoated samples of the subject merchandise were submitted to this office for examination.

FACTS:

The imported material consists of a dyed 100 percent plain weave cotton fabric that originates in India and is shipped to the United Kingdom for further processing. The cotton detail sheet submitted to this office states that the fabric is coated with a glue/clay/starch mixture. As stated supra, after importation into the United States, the fabric will be coated with an abrasive grit.

Protestant claims that classification of the subject material is proper under subheading 5907.00.90, HTSUSA. We note that the successor to this subheading in the 1995 tariff schedule is 5907.00.8090, HTSUSA, which provides for, inter alia, other textile fabrics otherwise impregnated, coated or covered. In the alternative, Protestant requests that classification of the subject merchandise be under subheading 5209.31.6030, HTSUSA, which provides for, inter alia, dyed, plain weave fabrics containing 85 percent or more by weight of cotton, weighing more than 200 grams per square meter, not napped.

Three Customs laboratory reports accompany this protest. The first, 2-91-11670-001, dated October 30, 1991, indicates that the cotton fabric has been treated on both sides with an animal glue. The second, 3-92-31494-001, dated August 5, 1992, gives the weight of the subject fabric as 236.5 grams per square meter. The third lab report, 3-92-10669-001, dated September 16, 1992, states that a clay in a cellulosic binder (starch) has been applied to one surface of the material.

ISSUE:

Whether the subject fabric is classifiable under subheading 5907.00.8090, HTSUSA, or under subheading 5209.31.6030, HTSUSA?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes, taken in order. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI's.

Heading 5907, HTSUSA, provides for impregnated, coated or covered textile
fabrics. As noted above, lab report 3-92-10669-001 states that the subject fabric has been coated on one surface with clay in a cellulosic binder (starch). Note 5(d) to Chapter 59 states:

"5. Heading 5907 does not apply to:

(d) fabrics finished with normal dressings having a basis of amylaceous or similar substances; ..."

The determinative issue, therefore, is whether the clay cellulosic binder (starch) applied to this fabric constitutes a "normal dressing having a basis of amylaceous or similar substances." For guidance in this area, we consulted a technical treatise, Wellington Sears Handbook of Industrial Textiles. The section on "Abrasive Products," section 172 at page 256, reads:

"[S]tandard cotton abrasive drills and jeans are first dyed for product identification ... the fabric is impregnated with a backing adhesive and back-filled' with an inert material, such as starch, clay, or talc, to fill up the weave interstices and make the cloth non-porous. The fabric is next given a final sizing coat ... ."

This clay, starch, glue mixture appears to be in the nature of a sizing substance. The fabric is finished by sizing and this finishing operation serves to ready its surface for the application of the abrasive grit.

The term "dressing" is defined in Fairchild's Dictionary of Textiles, as:

"1). A term applied to the application of a sizing substance to yarns, cloth, etc. to give luster, weight, stiffness, or smoothness ... 2). Also applied to the substance used to give size, e.g., starch, China clay, gum, glue, etc. ... ."

On the basis of the foregoing definitions, this office is of the opinion that the subject fabric has been dressed with an amylaceous substance and therefore is precluded from classification under heading 5907 by the terms of Note 5(d) to Chapter 59.

Because we have determined that classification is precluded from heading 5907, HTSUSA, on the basis of Note 5(d) to Chapter 59, we need not discuss whether the coating on this fabric is visible to the naked eye.

Heading 5901, HTSUSA, provides for "[T]extile fabrics coated with gum or amylaceous substances, of a kind used for the outer covers of books or the like; tracing cloth; prepared painting canvas; buckram and similar stiffened textile fabrics of a kind used for hat foundations." Although the subject merchandise is a textile fabric coated with an amylaceous substance, classification is not proper in this heading inasmuch as the subject fabric is not put to any of the enumerated uses.

Heading 5209, HTSUSA, provides for plain weave fabrics containing 85 percent or more by weight of cotton, weighing more than 200 grams per square meter. As the subject fabric is a dyed, unnapped, plain weave fabric made from 100 percent cotton, and it weighs 236.5 grams per square meter, classification is proper under subheading 5209.31.6030, HTSUSA.

Lastly, in Protestant's submission to this office, it is questioned whether "the long and continued use of a tariff provision by a UK manufacturer and exporter familiar with the Harmonized System and its predecessors constitutes an established and uniform practice... ."

Section 177.10(c)(1) of the Customs Regulations (19 C.F.R. 177.10(c)(1)), reads:

"[B]efore the publication of a ruling which has the effect of changing a practice which results in the assessment of a higher rate of duty, notice that the practice (or prior ruling on which the practice is based) is under review will be published in the Federal Register and interested parties will be given an opportunity to make written submissions with respect to the correctness of the contemplated change."

See also Section 315(d), Tariff Act of 1930, as amended.

In A Manual of Customs Law, by Ruth F. Sturm, (1974), at page 201, citing, inter alia, United States v. H. Reeve Angel & Co., Inc. 33 CCPA 114, C.A.D.324 (1946), cert. den. 328 U.S. 835 (1946), it is recognized that:

"[L]ong-continued administrative practice must be shown by positive evidence. It is not established by the rulings of one or two collectors (ports) as to a few shipments ."

As no documentary evidence has been submitted to this office which substantiates the Protestant's claim that Customs has an established and uniform practice with regard to the classification of the subject fabric, we can not address the merits of this claim.

HOLDING:

The subject fabric is classifiable under subheading 5209.31.6030, HTSUSA, which provides for "[W]oven fabrics of cotton, containing 85 percent or more by weight of cotton, weighing more than 200 grams per square meter: dyed: plain weave: other... sheeting: not napped... ."

Since the classification indicated above is the same as the classification under which the subject entries were liquidated, you are instructed to deny the protest in full.

A copy of this decision should be attached to the Form 19 and provided to the Protestant as part of the notice of action on the protest. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with this decision must be accomplished prior to the mailing of the decision.

Sixty days from the date of this decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and to the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division


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