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NY D81827




September 3, 1998

CLA-2-54:RR:NC:TA:352 D81827

CATEGORY: CLASSIFICATION

TARIFF NO.: 5407.20.0000

Mr. Hans Wilgenburg
Wilgenburg Greenhouses
20682 East Manning Avenue
Reedley, California 93654

RE: The tariff classification of 100% polyethylene plain woven fabric from Australia.

Dear Mr. Wilgenburg:

In your letter dated August 19, 1998 you requested a tariff classification ruling.

The submitted sample is a plain woven fabric composed of 100% polyethylene. It contains 8 strips per inch in the warp and 8 strips per inch in the filling. Each of the strips measures approximately 3 millimeters in width. These strips meet the dimensional requirements to be considered textile strips. This fabric is coated with a clear polyethylene plastic on both sides. However, this plastic coating is not visible to the naked eye. You indicate that this product will be used as a covering for a greenhouse system which will provide a controlled environment for the growing of agricultural products such as tomatoes.

Note 2 to Chapter 59, Harmonized Tariff Schedule of the United States, (HTS), defines the scope of heading 5903, under which textile fabrics which are coated, covered, impregnated, or laminated with plastics are classifiable. In addition, it provides guidance on the classification of combinations of textile and plastics. Note 2 states in part that heading 5903, HTS, applies to:

(a) Textile fabrics, impregnated, coated, covered or laminated with plastics, whatever the weight per square meter and whatever the nature of the plastic material (compact or cellular), 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 purposes of this provision, no account should be taken of any resulting change in color;

(2) Products which cannot, without fracturing, be bent manually around a cylinder of a diameter of 7 mm, at a temperature between 15 C and 30 C (usually chapter 39)

(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 of color (chapter 39);

Since the coating on this fabric is not visible to the naked eye, it is not considered a coated fabric either for the purposes of classification in heading 5903, HTS, as a coated fabric of textile nor as a plastic product of chapter 39.

The applicable subheading for the plain woven polyethylene fabric will be 5407.20.0000, Harmonized Tariff Schedule of the United States (HTS), which provides for woven fabrics of synthetic filament yarn, including woven fabrics obtained from the materials of 5404, woven fabrics obtained from strip or the like. The rate of duty will be 10.2 percent ad valorem.

Your correspondence suggests that you believe that this product may be classifiable as machinery, equipment and implements to be used for agricultural or horticultural purposes in subheading 9817.00.5000, HTS. This is not possible. U.S. Note 2 to subchapter XVII states in part:

2. The provisions of headings 9817.00.50 and 9817.00.60 do not apply to:

(e) articles of textile material

Since we have determined that the fabric you intend to import is a textile material, it is precluded from classification in subheading 9817.00.5000, HTS.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Alan Tytelman at 212-466-5896.

Sincerely,

Robert B. Swierupski
Director,

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