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HQ 964982




September 4, 2002

CLA-2 RR:CR:TE 964982 jsj

CATEGORY: CLASSIFICATION

TARIFF NO.: 5407.20.0000

Mr. William J. Maloney
Rode & Qualey
295 Madison Avenue
New York, New York
10017

RE: Woven Polypropylene Strip Fabric; Coated; Laminated; Impregnation, Coating or Covering Cannot be Seen With the Naked Eye; Chapter 59, Note 2(a)(1); Verosol v. United States; Manually Separable; Subheading 5407.20.0000, HTSUSA.

Dear Mr. Maloney:

The purpose of this correspondence is to respond to your request dated May 11, 1998. The correspondence in issue requested, on the behalf of your client, Ovasco Industries, a division of Ohio Valley Bag and Burlap Company, a binding classification ruling of the merchandise described as Ovasco’s “9802 coated polypropylene fabric.”

This ruling is being issued subsequent to the following: (1) A review of your submissions dated March 11, 1998, April 17, 1998, and May 11, 1998; (2) A review of the samples identified as Samples A, B, C and D that accompanied your submission of May 11, 1998; and (3) A telephone conference conducted between yourself and a member of my staff on August 23, 2002.

FACTS

The articles in issue are woven polypropylene strip fabrics that have been coated or laminated with a clear polypropylene plastic.

Sample A

Sample A is a clear polypropylene woven fabric. The fabric is composed of 900 denier, man-made fiber textile strips that measure less than five millimeters in apparent width, with an 8 x 5 count. One side of the fabric has been coated or laminated with a clear polypropylene plastics film. The fabric has the following weight breakdown in grams per square meter: Weight of Coating: 20 g/m²; Weight of Fabric: 50 g/m²; and Total Weight: 70 g/m².

Sample B

Sample B is a polypropylene woven fabric. The fabric is composed of 725 denier, man-made fiber textile strips that measure less than five millimeters in apparent width, with an 8 x 5 count. The fabric has a pale or lightly pigmented white color. One side of the fabric has been coated or laminated with a clear polypropylene plastics film. The fabric has the following weight breakdown in grams per square meter: Weight of Coating: 20 g/m²; Weight of Fabric: 40 g/m²; and Total Weight: 60 g/m².

Sample C

Sample C is a polypropylene woven fabric. The fabric is composed of 850 denier, man-made fiber textile strips that measure less than five millimeters in apparent width, with a 9 x 9 count. The fabric is white. One side of the fabric has been coated or laminated with a clear polypropylene plastics film. The fabric has the following weight breakdown in grams per square meter: Weight of Coating: 20 g/m²; Weight of Fabric: 44 g/m²; and Total Weight: 64 g/m².

Sample D

Sample D is a clear polypropylene woven fabric. The fabric is composed of 850 denier, man-made fiber textile strips that measure less than five millimeters in apparent width, with a 9 x 9 count. One side of the fabric has been coated or laminated with a clear polypropylene plastics film. The fabric has the following weight breakdown in grams per square meter: Weight of Coating: 20 g/m²; Weight of Fabric: 64 g/m²; and Total Weight: 84 g/m².

The Customs Service notes that the above product specifications were provided by counsel for the importer. The Office of Regulations and Rulings did not seek analysis of the samples from Customs laboratory.

The textile strips in each of the samples are flat at full width and have not been crimped or folded. Customs notes, in examining the samples, that there are no spaces in the closely woven fabrics. Differences in color that may be mistaken for plastic coating over openings between the warp and weft yarns are actually the underlying warp and weft yarns. See generally HQ 950542 (Mar. 2, 1992).

The Customs Service is advised that the countries of manufacture will be “Thailand, India, Indonesia or other countries to be determined.” Submission of Counsel, p. 1 (Mar. 11, 1998).

ISSUE

What is the classification, pursuant to the Harmonized Tariff Schedule of the United States Annotated, of the above-described woven polypropylene strip fabrics that are impregnated, coated or covered with a clear or tinted polypropylene plastics film ?

LAW AND ANALYSIS

The federal agency responsible for initially interpreting and applying the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is the U.S. Customs Service.

See 19 U.S.C. 1500 (West 1999) (providing that the Customs Service is responsible for fixing the final appraisement, classification and amount of duty to be paid); See also Joint Explanatory Statement of the Committee of Conference, H.R. Conf. Rep. No. 100-576, at 549 (1988) reprinted in 1988 U.S. Code Cong. and Adm. News 1547, 1582 [hereinafter Joint Explanatory Statement]. The Customs Service, in accordance with its legislative mandate, classifies imported merchandise pursuant to the General Rules of Interpretation (GRI) and the Additional U.S. Rules of Interpretation. See 19 U.S. C. 1202 (West 1999); See generally, What Every Member of The Trade Community Should Know About: Tariff Classification, an Informed Compliance Publication of the Customs Service available on the World Wide Web site of the Customs Service at www.customs.gov, search “Importing & Exporting” and then “U.S. Customs Informed Compliance Publications.”

General Rule of Interpretation 1 provides, in part, that classification decisions are to be “determined according to the terms of the headings and any relative section or chapter notes.” General Rule of Interpretation 1. General Rule of Interpretation 1 further states that merchandise which cannot be classified in accordance with the dictates of GRI 1 should be classified pursuant to the other General Rules of Interpretation, provided the HTSUSA chapter headings or notes do not require otherwise. According to the Explanatory Notes (EN), the phrase in GRI 1, “provided such headings or notes do not otherwise require,” is intended to “make it quite clear that the terms of the headings and any relative Section or Chapter Notes are paramount.” General Rules for the Interpretation of the Harmonized System, Rule 1, Explanatory Note (V).

The Explanatory Notes constitute the official interpretation of the Harmonized System at the international level. See Joint Explanatory Statement supra note 1, at 549. The Explanatory Notes, although neither legally binding nor dispositive of classification issues, do provide commentary on the scope of each heading of the HTSUS. The EN’s are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989); Lonza, Inc. v. United States, 46 F. 3rd 1098, 1109 (Fed. Cir. 1995).

Commencing classification of the laminated or coated woven polypropylene strip fabrics, in accordance with the dictates of GRI 1, the Customs Service examined the headings of the HTSUSA. Heading 5407, HTSUS, provides for the classification of “Woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404.” Materials of heading 5404, HTSUS, include, in part, “strip and the like (for example, artificial straw) of synthetic textile materials of an apparent width not exceeding 5 mm.”

The Ovasco fabrics meets the terms of heading 5407, HTSUS, as being woven fabrics “obtained from materials of heading 5404.” The fabrics subject to classification consideration are woven from strips of synthetic textile materials with an apparent width not exceeding five millimeters.

The Ovasco strips conform to the requirements of heading 5404, HTSUS, as they are “flat” strips. Explanatory Note 54.04(2). The apparent width of the strips, that is the width of the strips in “the folded, flattened, compressed or twisted state” does not exceed five millimeters. Explanatory Note 54.04(2).

They are also strips of “synthetic textile materials” as defined in Note (1) of Chapter 54. Note (1) defines synthetic textile materials as materials produced by the “polymerization of organic monomers, such as polyamides, polyesters, polyurethanes or polyvinyl derivatives.” Chapter 54, Note (1), HTSUS. The Ovasco fabrics are woven from strips of polypropylene, a material produced by the polymerization of an organic monomer. See General Explanatory Notes, Chapter 54, (I) SYNTHETIC FIBERS (3).

Continuing the classification of Ovasco Industries’ laminated or coated woven polypropylene strip fabrics, the fabrics are classified in subheading 5407.20.0000, HTSUSA. Subheading 5407.20.0000, HTSUSA, provides for the classification of:

Woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404:

5407.20.0000 Woven fabrics obtained from strip or the like.

Counsel for the importer suggests that the fabrics in issue are properly classified in subheading 5903.90.2500, HTSUSA. Heading 5903, HTSUS, provides for the classification of “Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902.” The chapter notes to Chapter 59 are particularly relevant to the resolution of this classification issue.

Chapter 59, Note 2 provides, in pertinent part, “Heading 5903 applies to: (a) Textile fabrics, impregnated, coated, covered or laminated with plastics,, 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.” (Emphasis added). In accordance with the language of heading 5903 and the chapter notes to Chapter 59, the Ovasco fabrics, to be classified in heading 5903, HTSUS, would have to be textile fabrics that are impregnated, coated, covered or laminated with plastics that is visible to the naked eye with no consideration given to a change in the color of the fabric that results from the impregnation, coating, covering or lamination.

The Ovasco fabrics do not meet the terms of heading 5903, HTSUS, and Note (2) to Chapter 59. See General Rule of Interpretation 1. The polypropylene film laminated to one side of the fabrics is not visible to the naked eye. See generally Verosol v. United States, 941 F. Supp. 193, 142 (Ct. Int’l Trade 1996) (holding that sheen that is a direct result of a coating process, “along with the obscuring of the individual fabric fibers and the enhancement of the texture of the fabric’s weave” serve to prove the visibility of the plastic coating); See also HQ 950931 (April 24, 1992) (holding that in the absence of legislative intent and guidance from the Explanatory Notes, Customs will accord the language of Note (2) of Chapter 59 its plain meaning: “If what the unaided eye perceives when viewing the fabric with a plastics application is nothing more than what would be perceived if a dye had been applied to the fabric, then the fabric is not coated for the purposes of Note 2 of Chapter 59. However, if the unaided eye perceives the existence of an added substance, then that substance qualifies as a ‘coating or covering’ within the purview of Note 2, provided that the plastics is spread over the entire surface of the fabric.”)

Counsel for Ovasco directs Customs attention to Headquarters Ruling Letters 957917 (July 28, 1995) and 958702 (Mar. 19, 1996) as support for the importer’s contention that its fabrics have a visible coating. Headquarters Ruling Letter 957917 and HQ 958702 both provide, “In the instant analysis, examination of the subject fabrics yields the finding that it is visibly coated with plastic. The translucent plastic laminate is manually separable from the underlying woven polypropylene strip. It is on this basis that Customs deems the fabrics visibly coated.” Counsel reads the referenced rulings as providing that “fabrics are visibly coated if the plastic laminate is separable from the underlying fabric.” Submission of Counsel, p. 3 (Mar. 11, 1998).

Customs statements in HQ 967917 and HQ 958702 were not intended to change the test set forth in the tariff schedule, that the plastic coating must be visible to the naked eye. The dicta in HQ 967917 and HQ 958702 regarding whether the plastic coating was manually separable was only intended to serve as a means of confirming that the fabric coating was visible. As stated in both of the referenced rulings, “[t]he sole criterion upon which Customs is to determine whether fabric is coated for purposes of classification under heading 5903, HTSUSA, is based on visibility.” (Emphasis added). Customs reference to the ability to manually separate the coating from the fabric was only intended to be a means of confirming Customs conclusion that the coating was visible. If the plastic coating is not visible to the naked eye, as is the case with Ovasco’s merchandise, it is of no importance that the coating may be manually separated from the fabric.

HOLDING

The Ovasco Industries woven polypropylene strip fabrics that are impregnated, coated, covered or laminated with a polypropylene film that is not visible to the naked eye are classified in subheading 5407.20.0000, Harmonized Tariff Schedule of the United States Annotated.

The General Column 1 Rate of Duty is three and four-tenths (3.4) percent, ad valorem.

The textile quota category for merchandise classified in subheading 5407.20.0000, HTSUSA, is category 620.

The designated textile and apparel category may be subdivided into parts. If subdivided, any quota and visa requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent negotiations and changes, to obtain the most current information available, we suggest your client 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 updated weekly and is available for inspection at your local Customs Service office. The Status Report On Current Import Quotas (Restraint Levels) is also available on the Customs Electronic Bulletin Board (CEBB) which can be found on the U.S. Customs Web site at www.customs.gov.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, your client should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division

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