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HQ 957378





August 10, 1995

CLA-2 CO:R:C:T 957378 SK

CATEGORY: CLASSIFICATION

TARIFF NO.: 5903.90.2500

District Director
U.S. Customs Service
1000 Second Avenue, ste.2200
Seattle, WA 98104-1049

RE: Decision on Application for Further Review of Protest No. 3004-94-100147; classification of "coated fabric"; coating must be visible to the naked eye; Note 2(a)(1) to Chapter 59; subheading 5903.90.2500, HTSUSA; woven fabric of polyethylene strips coated on one side with white opaque polyethylene; fabric is visibly coated if the weave of the fabric is obscured by the coating..

Dear Sir:

This is a decision on application for further review of a protest timely filed by Norman G. Jensen, Inc., on behalf of their client, Fabrene, Inc., on August 8, 1994, against your decision regarding the classification of coated fabric. Two entries of the subject merchandise were entered at the port of Blaine, Washington on March 11 and 15, 1994. Both entries were liquidated on June 17, 1994.

FACTS:

The merchandise at issue is a plain woven fabric made of polyethylene strips that have been coated on one side with a white, opaque application of polyethylene. The strips do not exceed 5 millimeters in width.

Protestant states that this merchandise is classifiable under subheading 5903.90.2500, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for textile fabrics of man-made fibers, impregnated, coated, covered or laminated with plastics, dutiable at a rate of 8.4 percent ad valorem. The attendant textile quota category is 229.

Customs liquidated the subject merchandise under subheading 5407.20.0000, HTSUSA, as uncoated woven fabric obtained from strips and the like. The applicable duty rate is 15.3 percent ad valorem and the textile quota category is 620.

ISSUE:

Whether the white plastic coating on the fabric at issue is visible to the naked eye so as to warrant classification under heading 5903 of the HTSUSA?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 requires that classification be determined according to the terms of the chapter notes and, unless otherwise required, according to the remaining GRI's. Where goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI's may be applied, taken in order.

Heading 5903, HTSUSA, provides for textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902. The scope of heading 5903 is restricted by Note 2 to Chapter 59, HTSUSA, which states:

"[H]eading 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."

As set forth supra, the sole criterion upon which Customs is to determine whether fabric is coated for purposes of classification under heading 5903, HTSUSA, is clear and unambiguous: fabric is classifiable under heading 5903 if the plastic coating is visible to the naked eye. This office has established criterion by which Customs will deem coating visible to the naked eye. In Headquarters Ruling Letters (HRL's) 083127, dated November 8, 1989, and 087668, dated January 9, 1991, this office noted that where coating served to "blur" or "obscure" a fabric's underlying weave, the fabric was deemed visibly coated for purposes of classification within heading 5903, HTSUSA.

In applying this visibility standard to the subject fabric, we are of the opinion that the white polyethylene coating blurs the underlying weave of the polyethylene strips. A visual comparison of the coated and uncoated sides yields the finding that the coated side is significantly smoother than the uncoated side and the coating has served to obscure the fabric's weave, thus rendering the polyethylene coating visible to the naked eye.

HOLDING:

The subject fabric is classifiable under subheading 5903.90.2500, HTSUSA, which provides for "[T]extile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902: other: of man-made fibers: other: other," dutiable at a rate of 8.4 percent ad valorem. The textile quota category is 229.

As the rate of duty under the classification indicated above is lower than the rate of duty under which the subject entries were liquidated, you are instructed to grant 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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