CLA-2 CO:R:C:G 087253 JS
TARIFF NO: 3921.90.1500
David R. Amerine
Brownstein Zeidman and Schomer
1401 New York Avenue, N.W.
Washington, D.C. 20005-2102
RE: Calsak Corporation - Seattle Entry No. 335-0006791-4,
Dear Mr. Amerine:
This is in reference to your letter of May 25, 1990, on
behalf of Calsak Corporation, requesting assistance in the
processing and release of entry no. 335-0006791-4 being held at
the Seattle, Washington port. Although you did not specifically
ask for a binding ruling, your request for assistance will be
treated as such so as to expedite the release of your client's
The merchandise at issue is polyethylene sheeting material
which is stated to be identical to the poultry house curtain
material which was the subject of HRL 083513 issued January 9,
1990. A review of the two samples verifies their similarity.
The subject material is therefore of similar construction
with the exception of the 2 inch pocket hem which distinguished
the material of HRL 083513: it is woven from clear 1000 denier
polyethylene textile strips with either a 10 X 10 or 8 X 8 count.
Both sides have been extrusion coated (a lamination process) with
a clear thin polyethylene film 0.032 mm (1.26 mil) thick. The
combined weight of both plastic films is not over 70% of the
weight of this material.
The instant merchandise was given classification number
3921.90.1500, HTSUSA, in Invoice No. 59992 dated April 23, 1990,
and was accompanied by a Visa under textile category 229.
On May 16, 1990, Customs in Seattle issued a Notice of Redelivery
stating that your client's merchandise was to be reclassified
under subheading 5407.20.0000, Harmonized Tariff Schedule of the
United States Annotated ("HTSUSA"), subject to Visa under textile
category 620. You have advised us by letter dated 5/31/90 that
previous correspondence requesting classification for the subject
merchandise under subheading 3921.12.1500, HTSUSA, was erroneous,
and that you seek release of your clients' goods under subheading
3921.90.1500, HTSUSA, in accordance with similar entries of
merchandise made by Calsak in the past, and the principals set
forth in HRL 083513 regarding classification of coated materials.
Whether the material subject to this dispute is considered
coated for purposes of classification under the HTSUSA, and if
so, whether classification under heading 3921, HTSUSA, as
entered, is appropriate.
LAW AND ANALYSIS:
Note 2(a)(3), Chapter 59, Section XI, HTSUSA, provides that
fabrics which, when viewed with the naked eye, are entirely
coated or covered on both sides with plastics, are classifiable
in Chapter 39.
Customs has previously ruled that the naked eye test can be
augmented by magnification in certain circumstances. In a
memorandum dated March 14, 1988, to the Area Director of Customs,
New York Seaport, file 082994, we ruled that magnification is
allowable as an aid in determining whether what could be seen on
the surface of a fabric was a coating or merely the textile
Nevertheless, before using magnification, it is Customs
practice to examine textiles with the naked eye alone in order to
ascertain whether a coating is present. If nothing resembling a
coating is observed, the fabric will not be considered coated for
classification purposes. Nevertheless, if a visual examination
suggests the presence of a coating, it is within Customs
discretion to examine the fabric under magnification to confirm
or refute the initial observation. In this case, such
confirmation was obtained by viewing a cross section of the
material, which clearly substantiated the evidence of coating
that had been suggested by the sight test. Therefore, it is
Customs view that the polyethylene sheeting is coated, covered or
laminated on both sides with plastics material that is visible to
the naked eye.
Therefore, by virtue of Note 2(a)(3) and Section XI Note
1(h), HTSUSA, the merchandise is classifiable under heading 3921,
HTSUSA, which provides for other plastic sheets.
The subject merchandise is classifiable in subheading
3921.90.1500, HTSUSA, which provides for other plates, sheets,
film, foil and strip, of plastics, other: combined with textile
materials and weighing not more than 1.492 kg/m2: products with
textile components in which man-made fibers predominate by weight
over any other single textile fiber: other, dutiable at the rate
of 8.5 percent ad valorem. The textile category number is 229.
John Durant, Director
Commercial Operations Division