CLA-2 CO:R:C:G 087253 JS

TARIFF NO: 3921.90.1500

David R. Amerine
Brownstein Zeidman and Schomer
Suite 900
1401 New York Avenue, N.W.
Washington, D.C. 20005-2102

RE: Calsak Corporation - Seattle Entry No. 335-0006791-4, polyethylene sheeting

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 merchandise.


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.


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 itself.

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