CLA-2 CO:R:C:T 950931 CRS
David R. Amerine, Esq.
Brownstein Zeidman & Schomer
Suite 900
1401 New York Avenue, N.W.
Washington, D.C. 20005-2102
RE: Woven sheeting material; strip; coated with plastics; Note
2, Chapter 59; visible to the naked eye.
Dear Mr. Amerine:
This is in reply to your letter dated December 27, 1991, on
behalf of Calsak Corporation, in which you requested a tariff
classification ruling under the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA).
FACTS:
The merchandise at issue is a woven sheeting material made
from clear, 1,000 denier polyethylene strip with a 10 x 10 count.
The sheeting material has been coated on both sides with white
polyethylene plastics with a thickness of 30 microns.
ISSUE:
The issue presented is whether the plastic coating applied
to the sheeting material in question is visible to the naked eye
such that the material is classifiable for tariff purposes as a
coated fabric.
LAW AND ANALYSIS:
Two headings are potentially applicable to the instant
merchandise: heading 5903, HTSUSA, which provides for textile
fabrics impregnated, coated, covered or laminated with plastics,
other than those of heading 5902; and heading 5407, which covers
woven fabrics of synthetic filament yarn, including woven fabrics
obtained from materials of heading 5404.
The scope of heading 5903, however, is restricted by Note 2,
Chapter 59, HTSUSA, which provides in relevant part 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:
(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 in
color....
The woven strip fabric in question has been coated with plastics;
however, the coating cannot be seen by the naked eye. While the
application of the plastics coating has altered the appearance of
the strip from a clear to a white finish, Note 2(a), Chapter 59
specifically directs that changes in color should be ignored in
determining whether a fabric is coated for tariff purposes.
In Headquarters Ruling Letter (HRL) 085350 dated March 2,
1990, we stated that:
There is no indication in the Harmonized Commodity
Description and Coding System, Explanatory Notes, which
is the official interpretation of the HTSUSA at the
international level, on how the "naked eye" test should
be applied. Accordingly, it is Customs (sic) position
that, in the absence of legislative intent, the plain
meaning of the statutory language will be given effect.
If what the unaided eye perceives when viewing a 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 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.
Here the application of a white plastics coating is akin to a
dye; it is no more visible than the clear coatings which have
previously been the subject of rulings issued by this office.
E.g., HRL 950542 dated March 2, 1992; HRL 088313 dated August 2,
1991; HRL 087388 dated October 5, 1990; HRL 087250; and HRL
086644 dated June 1, 1990. Furthermore, the coating has not
obscured the underlying weave of the fabric nor is it visible
under magnification. Accordingly, it is Customs' view that the
strip fabric in question is not coated for tariff purposes.
HOLDING:
The merchandise in question is classifiable in subheading
5407.20.0000, HTSUSA, under the provision for woven fabric of
synthetic filament yarn, including woven fabrics obtained from
materials of heading 5404: woven fabrics obtained from strip and
the like. It is dutiable at the rate of 17 percent ad valorem
and subject to textile category 620.
The designated textile 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, in order to
obtain the most current information available we suggest that
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 available for
inspection at your client's local Customs office.
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 importation of this merchandise to
determine the current status of any import restraints or
requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division