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HQ 085008


SEPTEMBER 13, 1989

CLA-2 CO:R:C:G 085008 PR

CATEGORY: CLASSIFICATION

TARIFF NO.: 3926.90.9050; 3921.90.1500

Mr. Roscoe Gion
Accord Pacific Enterprises Ltd.
6029 Woodsworth Street
Burnaby, British Columbia, Canada V5G 1S9

RE: Tariff Status of Certain Coated Fabric and Articles Made From That Fabric

Dear Gion:

This ruling is in further response to your letter of May 23, 1989, addressed to our New York office. That office has responded with classification information on four of the five samples submitted. The fifth sample was referred to this office.

FACTS:

The submitted sample is a swatch of woven fabric of polyethylene textile strips, that has been coated or covered with transparent compact plastics material on both surfaces. This material will be imported in 200 meter length rolls, 72 inches wide, and will weigh 275 grams per linear meter. Based on its appearance, assume that the material is not over 70 percent by weight of plastics. In addition to the material, various articles made from the material will be imported--tarpaulins, pool covers, boat covers and lumber wraps.

The merchandise will be imported from Canada, Thailand, and China. Without descriptions of the processing performed in Canada, and samples of the materials entering Canada, we are unable to determine whether any merchandise exported from Canada is entitled to reduced rates of duty under the United States-- Canada Free Trade Agreement (FTA).

ISSUE:

The issue presented is whether the transparent coating is visible to the naked eye. If it is, the merchandise is considered to be made from a plastics material and is classifiable in Chapter 39, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). If not, the merchandise is textile and classifiable in Chapter 63, HTSUSA.

LAW AND ANALYSIS:

Heading 5903, HTSUSA, provides for textile fabrics impregnated, coated, covered, or laminated with plastics. Note 2 to Chapter 59, HTSUSA, states that 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:

(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);

The determination of whether a plastics coating, covering, or lamination can be seen with the naked eye, is, of necessity, a subjective one and depends on the specific merchandise involved. While a change in color cannot be considered in determining if a plastics layer can be seen, obviously, it is easier to see plastics if color has been added. Transparent plastics coatings and coverings, such as are present on the instant sample, give rise to difficult problems because they are more difficult to see and usually require a greater amount of plastics in order to be seen with the naked eye than do colored coatings or coverings.

In this instance, we have closely examined the submitted swatch under good light and conclude that the transparent plastics on both sides of the sample can be seen. Accordingly, Chapter 59 Note 2(a)(3), HTSUSA, is applicable and that material is classifiable as plastics for purposes of the HTSUSA.

HOLDING:

The subject merchandise, when imported in material lengths, is classifiable under the provision for other noncellular plastic sheets or film, combined with textile materials and weighing not over 1.492 kilograms per square meter, not over 70 percent by weight of plastics, in Subheading 3921.90.1500, HTSUSA. If a product of Canada for the purposes of the FTA, the applicable 1989 rate of duty is 7.6 percent ad valorem and the merchandise is not currently subject to any quota, visa, or export license restraints. As a product of Thailand or China, or if a product of Canada and not entitled to a reduction in the rate of duty under the FTA, the applicable 1989 duty rate is 8.5 percent ad valorem, the textile category is 229, and this merchandise may be subject to quota, visa, or export license restraints.

Without samples of the products to be made from the instant plastic coated textile material, we are unable to determine with certainty the tariff status of that merchandise. However, it appears likely that tarpaulins, pool covers, boat covers, and lumber wraps made of that material would be classifiable under the provision for other articles of plastics, in Subheading 3926.90.9050, HTSUSA. The applicable 1989 rate of duty for products of Canada, under the FTA, is 4.7 percent ad valorem. If the merchandise is a product of Canada and not entitled to FTA treatment, or if a product of Thailand or China, the 1989 rate of duty is 5.3 percent ad valorem. This merchandise is not currently subject to quota, visa, or export license restraints.

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 your local Customs office prior to importing the merchandise to determine the current applicability of any import restraints or requirements.

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 subject to frequent renegotiations 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 internal issuance of the U.S. Customs Service, which is available for inspection at your local Customs office.

Sincerely,

John Durant, Director

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