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HQ 960817




March 20, 2000

CLA-2 RR:CR:TE 960817 RH

CATEGORY: CLASSIFICATION

TARIFF NO.: 5211.12.0040

Port Director
U.S. Customs Service
50 South Main Street
St. Albans, VT 05478

RE: Protest and Application for Further Review 0201-96-100302 heading 3912; heading 5603; heading 5209; heading 5211

Dear Sir:

This is in reply to the Customs Protest and Summons Information Report dated August 28, 1996, concerning the Protest and Application for Further Review (AFR) number 0201-96-100302, which you forwarded to our office for review.

Tower Group International, Inc. timely filed the AFR on behalf of Consolidated Counter Corporation on August 28, 1996, against the classification and assessment of duty on imported brushed woven cotton/polyester fabric. Review is warranted pursuant to 19 CFR §174.24(b).

FACTS:

The protestant entered 899.1 square yards (500 sheets) of single layer brushed twill woven fabric, style HP540 (HP20A), into the United States on April 2, 1996, under subheading 5212.24.1020 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for other woven fabrics of combed cotton, weighing more than 200 grams per square meter (g/m²). According to a declaration from the Spanish manufacturer, the fabric was impregnated with polystyrene.

Information obtained from the manufacturer states that the fabric is composed of 39 percent cotton (130 g/m²) and 61 percent polystyrene (460 g/m²), and that it is not bleached. However, a Customs laboratory report sent to us by the National Import Specialist, which we note was not included in the documents forwarded to our office, reflects that the fabric is composed of 68 percent cotton and 32 percent polyester. By weight, the fabric is composed of 61 percent plastics material and 39 percent woven fabric. The Customs laboratory also determined that the fabric is not dyed or bleached.

Customs liquidated the entry on July 5, 1996, as entered, under subheading 5212.24.1020.

In the protest, the importer now claims that the fabric is classifiable in heading 3921, HTSUSA, the heading providing for other sheets, film, foil, and strip, of plastics.

ISSUE:

What is the classification of the subject fabric?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRI will be applied.

In interpreting the headings and subheadings, Customs looks to the Harmonized Commodity Description and Coding System Explanatory Notes, which are not legally binding, but are recognized as the official interpretation of the Harmonized System at the international level.

Initially, we note that the protestant originally entered the fabric under heading 5212, HTSUSA, as a woven fabric of cotton. The protestant now argues that the fabric is classifiable under heading 3921, HTSUSA, as an article of plastic. However, Note 2(m) to Chapter 39, HTSUSA, excludes goods of Section XI (textiles and textile articles) from classification within Chapter 39. Thus, we must first determine if the imported fabric is classifiable within one of the provisions in Section XI, HTSUSA. If so, it is barred from classification within Chapter 39.

The record reflects that upon liquidation Customs classified the fabric in heading 5603. That heading covers “Nonwovens, whether or not impregnated, coated, covered or laminated.” Since the fabric at issue is woven, classification under that heading was incorrect.

As evidenced by Customs laboratory findings, the merchandise under protest is a single layer of woven brushed fabric composed of 68 percent cotton and 32 percent polyester which has been impregnated with styrene. Heading 5903 provides for “Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902 [tire cord fabric].” Note 2(a), Chapter 59, HTSUSA, reads in relevant part:

(2) Heading 5903 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 purpose of this provision, no account should be taken of any resulting change of color;

The Customs National Import Specialist for this commodity examined a sample of the merchandise and determined that the coating on the subject fabric is not visible to the naked eye. Thus, the fabric is excepted by Note 2(a)(1) from classification in heading 5903.

Heading 5211, HTSUSA, provides for “Woven fabrics of cotton, containing less than 85 percent by weight of cotton, mixed mainly or solely with man-made fibers, weighing more than 200 g/m².” Moreover, there are no section or chapter notes which preclude classification of the subject fabric from classification within that provision. Accordingly, since the fabric is specifically described by heading 5211, it is classifiable under that provision pursuant to GRI 1 and Note 2(m), Chapter 39.

HOLDING:

The protest should be DENIED. The single layer brushed woven cotton/polyester fabric, style HP 540 (HP20A), is classifiable under subheading 5211.12.0040, of the 1996 HTSUSA, which provides for “Woven fabrics of cotton, containing less than 85 percent by weight of cotton, mixed mainly or solely with man-made fibers, weighing more than 200 g/m²: Unbleached: 3-thread or 4-thread twill, including cross twill: Napped.” It is dutiable at the general column one rate of 7.7 percent ad valorem and the textile category is 317.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs Personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division

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