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HQ 085350


March 2, 1990

CLA-2 CO:R:C:G 085350 PR

CATEGORY: CLASSIFICATION

TARIFF NO.: 5407.10.00; 5903.20.25

William D. Outman, II, Esquire
Baker & McKenzie
815 Connecticut Avenue, N.W., Suite 1100
Washington, D.C. 20006-4078

RE: Reconsideration of HRL 084804; Coated fabrics

Dear Mr. Outman:

This ruling is in response to your letter of August 15, 1989, on behalf of Samsonite Corporation, requesting that Customs reconsider its decision in its ruling of June 27, 1989, file (HRL) 084804, which concerned the classification of two fabrics.

FACTS:

New samples of the fabrics (styles 843 and 886) were submitted. These fabrics (and the previously submitted samples) are made of woven polyester filament yarns and have polyurethane plastics applied to one surface. While they were described in HRL 084804 as being constructed with a basket weave, closer examination shows that both the new and the prior samples are constructed as follows: (1) Style 843 is made with a plain under one/over one (-_-_-_-)weave; (2) Style 886 appears to be made with an under two/over four (--____--____) weave. In view of the holding in HRL 084804, we assume for the purposes of this ruling that all the fabrics concerned are made of yarns which meet the definition of "high tenacity yarn" found in Note 6 of Section XI.

HRL 084804 held that the polyurethane could not be seen with the naked eye. Therefore, the fabrics were classified under Heading 5407, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as woven fabrics of man-made fibers, and not under Heading 5903, HTSUSA, which provides for textile fabrics "impregnated, coated, covered or laminated with plastics." We have reviewed the samples and holding of HRL 084804 and adhere to our ruling on those samples.

In comparing the submitted samples with the swatches retained in our case file for HRL 084804, it is obvious that the polyurethane plastics material on the newly submitted swatch of style 843 is much more visible than it is on the sample previously ruled upon. In addition, the new sample style 886 also appears to have a slightly different amount of plastics than the style 886 ruled upon in HRL 084804.

ISSUE:

The issue presented is whether the polyurethane plastics material on the new samples is sufficient to constitute a coating or covering for the purposes of the HTSUSA, thus causing the fabrics to be classifiable under Heading 5903.

LAW AND ANALYSIS:

Note 2 to Chapter 59, HTSUSA, states that 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 * * * for the purpose of this provision, no account should be taken of any resulting change of color;

There is no indication in the Harmonized Commodity Description and Coding System, Explanatory Notes, which is the official interpretation of the HTSUSA at the international level, on how the "naked eye" test should be applied. Accordingly, it is Customs position that, in the absence of legislative intent, the plain meaning of the statutory language will be given effect. If what the unaided eye perceives when viewing a fabric with a plastics application is nothing more than what would be perceived if a dye had been applied to the fabric, then the fabric is not coated for purposes of Note 2 of Chapter 59. However, if the unaided eye perceives the existence of an added substance, then that substance qualifies as a "coating or covering" within the purview of Note 2, provided that the plastics is sufficiently spread over the entire surface of the fabric. A change in the reflectivity, sheen, etc., of a fabric is considered to be the perception of the effect of a plastics application and not a perception of the plastics itself.

Applying this test to the subject samples, it is clear that the new sample of style 843 qualifies as coated for purposes of Note 2. While less clear, the plastics application on the new sample of style 886 still does not, in our view, qualify as a "coating or covering".

HOLDING:

Our ruling in HRL 084804 is affirmed.

Fabric as represented by the new sample of style 843 is classifiable under the provision for other polyurethane coated or covered fabrics of man-made fibers, in Subheading 5903.20.25, HTSUS, and dutiable, as a product of Taiwan, at the rate of 8.5 percent ad valorem.

Fabric as represented by the new sample of style 886, as well as the old styles 843 and 886, are classifiable under the provision for woven fabrics of synthetic filament high tenacity polyester yarns, in Subheading 5407.10.00, HTSUS, with duty at the rate of 17 percent ad valorem.

Sincerely,

John Durant, Director

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