CBP Ruling H098398

HQ H098398 December 14, 2010 CLA-2 OT:RR:CTF:TCM H098398 ASM CATEGORY: Classification TARIFF NO.: 3926.90.9980 Port Director Bureau of Customs and Border Protection 1 East Bay Street Savannah, GA 31401 RE: Application for Further Review of Protest No. 1703-09-100515; Tariff Classification of the "Duraworx Tarp" Dear Port Director: This is in reference to a Protest and Application for Further Review (AFR), filed on behalf of the importer, L.G. Sourcing, Inc. regarding the classification of an article identified as the "Duraworx Tarp" under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample of the subject fabric has been received and examined by U.S. Customs and Border Protection (CBP). FACTS: The article in question, identified as the "Duraworx Tarp" (item 186785), is a plastic-coated reversible tarpaulin with hems and four grommets (one grommet on each of the four corners). The sample is composed of woven strips of non-cellular polyethylene plastic. Each side has been coated with dyed polyethylene plastic. There are approximately 10 strips per linear inch in both directions. Each strip has a width of approximately 2.5 millimeters. The plastic coating serves to diffuse the edges of the plastic strips while rendering the material waterproof. The subject merchandise was entered on August 30, 2007, under subheading 3926.90.9980, HTSUSA, which provides for "Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other, Other". However, CBP disagreed with this classification and liquidated the merchandise on June 26, 2009, under subheading 6306.12.0000, HTSUSA, which provides for "Tarpaulins, awnings and sunblinds; tents; sails for boats, sailboards or landcraft; camping goods: Tarpaulins, awnings and sunblinds: Of synthetic fibers". On December 22, 2009, the Importer timely filed a Protest and AFR asserting that the fabric used to construct the tarpaulin has been coated/laminated with a plastics material that is visible to the naked eye and should be classified in subheading 3926.90.9980, HTSUSA. The Protestant further asserts that the decision to reclassify the subject plastic-coated tarpaulin from subheading 3926.90.9980, HTSUSA, to subheading 6306.12.0000, HTSUSA, is inconsistent with previous CBP classification rulings and applicable regulations. ISSUE: What is the proper classification for the merchandise? LAW AND ANALYSIS: The protest was properly filed under 19 U.S.C. §1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)). Further Review of Protest No. 1703-09-100515 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(c). The decision against which the protest was filed is alleged to be inconsistent with previous CBP classification rulings and applicable regulations. Classification under the Harmonized Tariff Schedule of the United States (HTSUS) is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the 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 may then be applied. The Harmonized Commodity Description and Coding System Explanatory Notes ("ENs") constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). In this instance, the fabric is constructed of strips that are not over 5 millimeters in apparent width which meets the dimensional requirements of textile strips of heading 5404, HTSUS. Fabrics woven of such strips are textile fabrics of Section XI, HTSUS. However, Section XI, Note 1(h), HTSUS, provides in relevant part as follows: 1. This section does not cover: * * * (h) Woven, knitted or crocheted fabrics, felt or nonwovens, impregnated, coated, covered or laminated with plastics, or articles thereof, of chapter 39; For purposes of classification under the HTSUS, where there is a combination of plastics and textiles, such as we have in the subject article, the general EN to Chapter 39, under the heading, "Plastics and textile combinations", in part provides: The following products are also covered by this Chapter: * * * (a) Textile fabrics and nonwovens, either completely embedded in plastics or entirely coated or covered on both sides with such material, provided that such coating or covering can be seen with the naked eye with no account being taken of any resulting change in colour;... The determination of whether a plastic coating or covering can be seen with the naked eye is a subjective one and depends on the specific merchandise involved. Although there is no definition in the HTSUS of whether or not a coating is visible to the naked eye, CBP has set forth factors to consider when determining what constitutes a coating that can be seen with the naked eye for purposes of tariff classification. In Headquarters Ruling Letter (HQ) 085350, dated March 2, 1990, CBP discussed the meaning of the term, "visible to the naked eye", by noting that if the unaided eye perceives the existence of an added substance, then that substance qualifies as a coating or covering within the meaning of the Tariff, provided that the plastic coating is sufficiently spread over the entire surface of the fabric. The fact that a coating has dye or color pigment added does not affect the determination of whether or not a coating is "visible to the naked eye". In HQ 955429, dated December 7, 1993, CBP stated, "The determinative factor with regard to whether fabric is deemed coated for purposes of classification under either heading 5903 or heading 3921, HTSUSA, is whether the coating is visible to the naked eye. . . This determination is based on a comparison made between the coated sample of each style with its uncoated counterpart. Specifically we note that in the case of each style, all of the fabric's interstices have been filled with either a polyurethane coating or . . . a silicone elastomer coating. When held up to a source of light, the interstices in the uncoated samples permit light to shine through. The coated samples leave no visible gaps in the weave of the fabric." See also HQ 957378, dated August 10, 1995, which stated that a coating is visible to the naked eye when that coating serves to "blur" or "obscure" a fabric's underlying weave. The following rulings provide further guidance on the factors giving rise to coatings which are visible to the naked eye: HQ 083194, dated December 18, 1989 (the pattern on the fabric was obscured and the plastic coating filled the intersections of the weave); HQ 086846, dated July 23, 1990 (the plastic was visible at the interstices of the yarns when the fabric was held up to the light); HQ 957850, dated July 5, 1995 (wherein a plastic coating was clearly visible when viewed in cross section); HQ 088769, dated May 23, 1991 (a partial obscuring of the underlying weave pattern was attributable to the coating and found to be an indication of a visible coating); HQ 950022, dated September 26, 1991 (where all interstices of fabric weave were filled with polyurethane so as to leave no gaps was found to have visible coating. However, when noticeable gaps were found in the fabric weave where plastic had not occluded, the fabric was found not to be visibly coated); HQ 952705, dated January 22, 1993 (the dulll appearance of fabric was not an indication of visible coating); HQ 953407, dated July 12, 1993 (visible coating was found where the coating "blurred the surface of the fabrics"); HQ 950468, dated January 2, 1992 (a visible coating was found where the plastic coating changes the visual or surface characteristics of the fabric. The CBP laboratory analyzed the subject fabric and provided a report which stated, in part: The sample is composed of woven strips of clear colorless non-cellular polyethylene plastic of less than 5 millimeters in apparent width. The woven strips are coated on one side with blue colored non-cellular polyethylene plastic and on the other side with green colored non-cellular polyethylene plastic. In our opinion, the coating is not visible to the naked eye. We have carefully examined the sample submitted to this office and disagree with the Lab's determination that the coating is not visible to the naked eye. After carefully assessing the samples and reviewing well-established criteria set forth in prior CBP ruling letters, it is our opinion that the coating can be seen with the naked eye. In fact, the coating affects the surface texture, and obscures the underlying textile structure comprised of woven strips. When comparing the unlaminated sample fabric with the finished plastic coated fabric, we note that the coating has blurred the surface of the fabric, and the interstices of the woven fabric strips are filled with polyethylene. When the coated sample is held up to the light, the plastic coating is clearly visible at the interstices with no gaps between the strips. However, light shines through the uncoated sample and the weave and gaps are readily apparent at the interstices of the woven strips. Since we have made our decision based on the visibility of the coating, we will not address the attorney's asserted position that the coating is visible to the naked eye because, allegedly, the coating material can be separated by hand from the underlying fabric. Finally, we note that heading 6306, HTSUSA, is a specific provision for tarpaulins, among other things. However, it is not a specific provision for tarpaulins of all materials or constructions. CBP has long held that tarpaulins made of woven textile strip fabric that have been visibly coated on both sides with plastic, are classifiable in subheading 3926.90, HTSUS, as other articles of plastics. See HQ 085008, dated September 13, 1989, HQ 083582, dated September 22, 1989, HQ 088365, dated February 26, 1991, NY 881488, dated January 7, 1993, and NY K88274, dated August 17, 2004. It is our determination that the coated woven strip fabric represented by the sample swatch is properly classified in heading 3921, HTSUS, which provides for "Other plates, sheets, film, foil and strip, of plastics: Cellular". However, the plastic sheeting fabric which comprises the subject tarpaulin has been further processed with hems and grommets. Chapter 39, Legal Note 10, HTSUS, excludes sheeting that is further worked from classification in heading 3921, HTSUS. Furthermore, the ENs to heading 3921 specifically state that sheets that are hemmed are precluded from classification in that heading. In view of the foregoing, we find the subject tarpaulins are classified in subheading 3926.90.9980, HTSUSA, which is the basket provision for "Other articles of plastics" because the textile fabric has been covered on both sides with plastic such that the coating can be seen with the naked eye. HOLDING: The subject merchandise, which has been identified as the "Duraworx Tarp" (item 186785), is correctly classified in subheading 3926.90.9980, HTSUSA, which provides for "Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other, Other". The general column one rate of duty at the time of entry was 5.3 percent ad valorem. You are instructed to ALLOW the protest in full. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision, the Office International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division 6