HQ 953689

September 30, 1993

CLA-2 CO:R:C:T 953689 BC

CATEGORY: Classification

TARIFF NO.: 5208.32.3040

District Director of Customs

U.S. Customs Service

6269 Ace Industrial Drive

Milwaukee, WI 53237

RE: Application for further review of protest no. 3701-92-

100070; classification of textile polishing cloth impregnated

with polishing compound; 100% cotton polishing cloth; imported on

rolls; Legal Note 2(a)(1) of Chapter 59; Legal Note 5(a) of

Chapter 59; visible to the naked eye

Dear Sir:

This responds to the referenced protest and application for

further review. We have reviewed all relevant materials and our

decision follows.

FACTS:

PROTESTANT is an importer of textile materials made of 100%

cotton and impregnated with a metal polishing compound. It is

imported on rolls and is cut to proper length after entry. A

small piece of the material was submitted with the protest as a

sample. A box of the kind the cloth is packaged in (for retail

sale) after cutting was also submitted. The box has printed on

the front the following words that describe the polishing cloth:

\"Silver Care Cloth\" and \"Beautifies and Protects the finest

Silver, Silver Plate and Gold.\" On the back, the following is

printed: \"This high quality cloth is made from 100% English

cotton impregnated with . . . \[producer\'s\] exclusive cleaning,

polishing and anti-tarnish agents. Ideal for dusting and

cleaning lightly tarnished silver, silver plate and gold.

Polishes to a brilliant shine.\" The Customs lab examined a

sample of the cloth submitted with the protest and concluded that

it is a \"piece of blue dyed woven fabric impregnated with a metal

polishing material,\" 100% cotton, plain weave and 181 grams per

square meter (Laboratory Report of October 28, 1992, Lab. No. 3-

93-10001-001).

The merchandise was entered on May 5, 1992. The entry was

liquidated on August 7, 1992, and this protest was timely filed

on September 21, 1992.

The merchandise was classified at liquidation under

subheading 5208.31.8090, Harmonized Tariff Schedule of the United

States Annotated (HTSUSA), covering certain woven fabrics of

cotton, plain weave, weighing not more than 100 grams per square

meter, dutiable at 14.7% ad valorem. PROTESTANT contends that

the merchandise should be classified under subheading

5903.90.1000, HTSUSA, as certain textile (cotton) fabrics

impregnated, coated, covered or laminated with plastics, other

than those of heading 5902, dutiable at 5.3% ad valorem.

You have indicated in this protest, and you recommend

accordingly, that the merchandise should be classified under

subheading 5208.32.3040, HTSUSA, as certain woven fabrics of

cotton, plain weave, weighing more than 100 grams per square

meter, sheeting, dutiable at 9.6% ad valorem. You explained that

this classification is supported by the Customs laboratory\'s

analysis of the sample submitted with this protest. Since the

sample was not submitted, though requested, in conjunction with

the liquidation, the classification at liquidation was not

accurate.

ISSUE:

What is the proper classification for the merchandise at

issue: 100% cotton fabric impregnated with a metal polishing

compound and imported on rolls?

LAW AND ANALYSIS:

PROTESTANT contends that the classification at liquidation

was incorrect. You concede that the classification at

liquidation was incorrect. However, PROTESTANT asserts that

subheading 5903.90.1000, HTSUSA, is the correct classification,

while you assert that subheading 5208.32.3040, HTSUSA, is the

correct classification.

Heading 5903, HTSUSA, pertains to textile fabrics

impregnated, coated, covered or laminated with plastics. The

protest fails to identify the character of the polishing compound

that impregnates the cloth. Yet, that the compound is a plastic

is implicit in PROTESTANT\'s assertion that heading 5903, HTSUSA,

is applicable. If the compound is a plastic, Legal Note 2(a)(1),

Chapter 59, HTSUSA, pertaining to textile fabrics impregnated,

coated, covered or laminated with plastics, is applicable. The

note provides that any impregnation, coating, covering or

lamination must be visible to the naked eye. The compound here

is not visible to the naked eye; therefore, if the compound is a

plastic, heading 5903, HTSUSA, is not applicable.

If the compound is other than a plastic, heading 5907,

HTSUSA, is suggested as a possible alternative. It covers

textile fabrics otherwise impregnated, coated or covered. Yet,

Legal Note 5(a), Chapter 59, HTSUSA, applicable to heading 5907,

HTSUSA, provides that any impregnation, coating or covering must

be visible to the naked eye. Since the compound is not visible

to the naked eye, heading 5907, HTSUSA, would be inapplicable.

With the Customs laboratory report as support, we believe

that classification under 5208.32.3040, HTSUSA, is correct.

HOLDING:

The cotton textile polishing cloth, impregnated with a metal

polishing compound and imported on rolls, is classifiable under

subheading 5208.32.3040, HTSUSA. The applicable duty rate is

9.6% ad valorem and the applicable textile quota category is 313.

Therefore, this protest is DENIED in part and APPROVED in

part. It is denied with respect to PROTESTANT\'s claim that the

fabric should be classified under subheading 5903.90.1000,

HTSUSA, and it is approved with respect to PROTESTANT\'s claim

that classification under subheading 5203.31.8090, HTSUSA, is

incorrect. Accordingly, the entry will be reliquidated and the

polishing fabric classified under subheading 5208.32.3040,

HTSUSA. Any duties due to PROTESTANT should be paid accordingly.

Please provide a copy of this decision to PROTESTANT, along with

the CF 19, Notice of Action.

The designated textile and apparel 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 the subject of frequent negotiations and

changes, to obtain the most current information available, we

suggest that you check, close to the time of shipment, the Status

Report on Current Import Quotas (Restraint Levels), an issuance

of the U.S. Customs Service, which is updated weekly and is

available at the 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 the local

Customs office prior to importing the merchandise to determine

the current status of any import restraints or requirements.

Sincerely,

John Durant, Director

Commercial Rulings Division