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HQ 081877


December 1, 1988

CLA-2 CO:R:C:G 081877 PR

CATEGORY: CLASSIFICATION

TARIFF NO.: 5407.82.00; 5513.21.00; 5514.21.00

Ms. Saralee Antrim
Carmichael International Service
P.O. Box 54772, Terminal Annex
Los Angeles, California 90026-5097

RE: Classification of a woven fabric with a plastics application

Dear Ms. Antrim:

This is in reply to your letter of January 14, 1988, on behalf of R. Doherty International, Inc., requesting a ruling on the classification of a certain fabric.

FACTS:

The submitted swatch of woven dyed fabric, described as "208T Chintz", is stated to be composed of 65 percent polyester and 35 percent cotton. It has a silver-colored application on one side which we assume to be plastics material. A similar swatch of fabric without the plastics application was also submitted for comparison purposes.

ISSUE:

The issue presented is whether the swatch of fabric with a plastics application is classifiable as a fabric impregnated, coated, or covered with plastics, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

LAW AND ANALYSIS:

Heading 5903, HTSUSA, provides for textile fabrics impregnated, coated, covered, or laminated with plastics (except tire cord which is provided for in Heading 5902).

Note 2 of Chapter 59, HTSUSA, provides, in pertinent part:

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 of color.

It is our view that the wording of Note 2(a)(1) ("visible to the naked eye") is a clear expression by the drafters of the Harmonized System that a significant, if not substantial, amount of material must be added to a fabric for it to be considered "impregnated, coated, or covered."

Therefore, following the strict wording of Note 2(a)(1), for a fabric to be considered "impregnated, coated, or covered" within that requirement, the plastics material added to the fabric must be visibly distinguishable from that fabric without the use of magnification.

Under magnification, it is obvious that, as noted above, one side of the fabric has a plastics application on its surface. However, we are precluded from using magnification to determine whether a fabric is "impregnated, coated, or covered" with plastics under the HTSUSA. Note 2(a) requires that the plastics must be "seen with the naked eye," otherwise than by a change in color.

While the swatch without the plastics is noticeably less stiff, such a comparison has no relevance under the HTSUSA in view of the "naked eye" test specifically set out in Note

Applying this statutory test to the submitted samples, using normally corrected vision in a well lighted room, the submitted sample does not meet the criterion of having the plastics application visible to the naked eye. Accordingly, the fabric has not been impregnated, coated, or covered with plastics for purposes of Heading 5903.

Since the fabric is not classifiable under Heading 5903, it is, therefore, a fabric classifiable in either Chapter 52, if considered to be of cotton, or, if of man-made fibers, in either Chapter 54 (if of filaments) or Chapter 55 (if of staple fibers).

Note 2(A), Section XI, HTSUSA, provides that goods classifiable in Chapters 50 to 55, and of a mixture or two or more textile materials are to be classified as if consisting of that one textile material which predominates by weight over each other single material.

HOLDING:

If the polyester fibers in the fabric are in the form of filaments, fabric as represented by the submitted swatch is classifiable under Subheading 5407.82.00, which provides for other dyed woven fabrics of synthetic filament yarn, containing less than 85 percent of synthetic filaments, mixed mainly or solely with cotton and dutiable at the rate of 17 percent ad valorem.

If the polyester fibers in the fabric are in the form of staple fibers and the fabric weighs less than 170 grams per square meter, fabric as represented by the submitted swatch is classifiable under Subheading 5513.21.00, which provides for dyed plain weave fabrics of synthetic staple fibers, containing less than 85 percent of such fibers, mixed mainly or solely with cotton. If the fabric weighs over 170 grams per square meter, the fabric is classifiable under a similar provision, Subheading 5514.21.00. In either classification, the applicable rate of duty is 17 percent ad valorem.

These classifications represent the present position of the Customs Service under the HTSUSA. If there are changes before the effective date of January 1, 1989, this advice may not continue to be applicable.

Sincerely,

John Durant, Director

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