CLA-2 CO:R:C:G 087250 CC 084744 086130

Mr. Alan E. Desbarats
Product Manager
Fabrene, Inc.
2000 Argentia Road
Suite 201, Plaza 5
Mississauga, Ontario L5N 2R7
Canada

Re: Reconsideration of HRL 084744 and HRL 086130; clear polyethylene coating on woven polyethylene fabric strips not visible; fabric strips not classifiable in Heading 5903

Dear Mr. Desbarats:

This letter is in response to your inquiry requesting reconsideration of Headquarters Ruling Letter (HRL) 084744, dated August 29, 1989, and HRL 086130, dated March 1, 1990. Samples were submitted with your request.

FACTS:

In HRL 084744 and HRL 086130, we decided that an application of clear polyethylene on woven polyethylene fabric strips was not visible to the naked eye, in application of Note 2 to Chapter 59 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Therefore we ruled that the fabric strips were not coated for classification purposes and were not classifiable in Heading 5903, HTSUSA.

You have submitted four samples in your request for reconsideration. Sample 1 is a woven fabric without any plastics application and is submitted for reference purposes only. Sample 2 is composed of woven polyethylene fabric strips with an application of 1 millimeter of clear polyethylene on one side; it is Sample 6 of HRL 084744. Sample 3 has the same construction as Sample 2, with the addition of an embossed finish on the plastics application that imparts an anti-skid surface; it is Sample 8 of the first inquiry letter of HRL 086130. Sample 4 has the same construction as Sample 2, with the addition of 1 millimeter of the polyethylene application on both sides; this sample was not submitted for consideration in either HRL 084744 or HRL 086130.

You have requested that Samples 2, 3, and 4 be classified as coated fabrics in Heading 5903, HTSUSA. We will not consider Sample 4 in this ruling, since it was not considered in either HRL 084744 or HRL 086130.

ISSUE:

Whether the merchandise at issue is classifiable in Heading 5903, HTSUSA, as textile fabrics impregnated, coated, covered or laminated with plastics?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.

Note 2 to Chapter 59 states that Heading 5903 applies to the following:

(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.

You contend that Samples 2 and 3 are coated with plastic since uncoated spaces between the tapes of Sample 1 can be seen, but no gaps between the tapes of Samples 2 and 3 are visible. In addition, for Sample 3, the uncoated side appears glossy, but the coated side is dull, and the embossed pattern is visible. Therefore there are visible differences in comparing Sample 1 with the other samples.

You also cite Headquarters Ruling 73 0251, dated December 10, 1973, in support of your position. In that ruling we stated that fabric would be considered coated if the yarns on the coated surface were visible, but clearly not as visible in detail as the yarns on the uncoated surface. You assert that the fabrics of Samples 2 and 3 are less visible than the fabric of Sample 1. You believe that although that ruling was issued under the old tariff law, the rationale of that ruling is applicable under the HTSUSA.

We have ruled under the HTSUSA that for a coating to be visible, it must create a change in the surface character of the fabric. We have carefully examined and reexamined the samples and do not see a change in the surface area attributable to the coating; we do not believe that the coating is visible. The information provided indicates that Samples 2 and 3 contain coating on one side. But for Sample 2, we are unable to determine which side is coated; for Sample 3, although the embossing treatment is visible, the plastic coating is not visible. There may be visible differences in comparing Samples 2 and 3 with Sample 1, e.g., gaps between the tapes, but the test is whether the coating on the particular sample at issue is visible. Since we find no evidence in support of your claim that the coating is visible, the samples at issue are not classifiable in Heading 5903, HTSUSA.

Headquarters Ruling 73 0251 was issued under the Tariff Schedules of the United States (TSUS). The merchandise classified in that ruling was not similar to the merchandise at issue in this case. In addition, the TSUS was replaced by the HTSUSA on January 1, 1989; therefore, the above-cited ruling is no longer binding.

Since the merchandise at issue is not classifiable in Heading 5903, it is classified in Heading 5407, HTSUSA, which provides for woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of Heading 5404.

HOLDING:

Samples 2 and 3 are classified under subheading 5407.20.0000, HTSUSA, which provides for woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of Heading 5404, woven fabrics obtained from strip or the like. The textile category is 620.

Articles that meet the definition of "goods originating in the territory of Canada" (see General Note 3(c)(vii)(B), HTSUSA) are subject to reduced rates of duty under the United States- Canada Free Trade Agreement Implementation Act of 1988. If the merchandise constitutes "goods originating in the territory of Canada," the applicable rate of duty is normally 13.6 percent ad valorem (otherwise, the general rate of duty is 17 percent ad valorem).

HRL 084744, dated August 29, 1989, and HRL 086130, dated March 1, 1990, are affirmed.

Sincerely,

John Durant, Director
Commercial Rulings Division