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HQ 086130


March 1, 1990

CLA-2 CO:R:C:G 086130 CMR 846948, 846949

CATEGORY: CLASSIFICATION

TARIFF NO.: 5407.20.0000, 5903.90.2500, 3921.90.1500

Mrs. Alice Wagner
C. J. Tower
Customs Brokers
128 Dearborn Street
Buffalo, New York 14207-3198

RE: Classification of certain coated fabrics

Dear Mrs. Wagner:

This ruling is in response to your letters of November 1, 1989, on behalf of your client, Fabrene Inc., regarding the classification of woven fabrics of polyethylene strip with various polyethylene coatings.

FACTS:

Twelve samples have been submitted to Customs for consideration. The fabric for all twelve samples is fabric of clear woven polyethy- lene strips, under 5 mm in apparent width, coated or laminated on one or both sides with various polyethylene plastic films. The samples were submitted in two separate letters each dated November 1, 1989.

The first letter refers to nine samples.

Sample 1 is the woven fabric with one side coated with the natural/clear polyethylene. In HRL 084744 of August 29, 1989, it was determined that the natural/clear polyethylene coating was not visible to the naked eye and therefore, this fabric was not classifiable as a coated fabric of Chapter 59. It was classified instead as if it were an uncoated fabric in subheading 5407.20.0000, HTSUSA, which provides for woven fabrics of synthetic strip.

Samples 2 and 3 are the same fabric with one side coated. The coating has had a blue concentrate colorant added in a ratio of one part colortech blue concentrate to 200 parts of natural polyethylene for sample 2 and a ratio of one part to 500 parts for sample 3.

Sample 4 is the fabric in tube form with one side coated with the natural/clear coating on one side. This sample was the subject of HRL 084348 of August 3, 1989 and was classified in the same provision as sample 1 above, subheading 5407.20.0000, HTSUSA.

Samples 5, 6 and 7 are the tubed fabric in which the coating has been colored with a red or pink color concentrate in an increasing ratio of natural polyethylene to the color concentrate: #5, 500:1; #6, 1000:1; and, #7, 2000:1.

Sample 8 is woven fabric of clear strips of polyethylene coated with natural/clear polyethylene coating which has been physically treated (embossed) to create an anti-skid surface.

Sample 9 is the woven fabric without any coating and is submitted for reference purposes only.

The second letter refers to three samples.

Sample 1 is the one-side natural coated polyethylene fabric which was classified in HRL 084744 in subheading 5407.20.0000, HTSUSA.

Sample 2 is the woven fabric with one side coated with polyethylene containing ampacet fire retardant additive. The ratio of ampacet fire retardant additive to natural polyethylene is 1:8.

Sample 3 is the woven fabric with both sides coated with polyethylene containing ampacet fire retardant additive. The ratio of ampacet fire retardant additive to natural polyethylene is the same as in sample 2.

ISSUE:

For classification purposes, are on the submitted samples considered impregnated, coated, covered or laminated with plastics; i.e, are the coatings visible to the naked eye?

LAW AND ANALYSIS:

Classification of products under the HTSUSA is governed by the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided such headings or notes do not otherwise require, according to [the remaining GRIs taken in order].

The fabric at issue, without coating or without a visible coating, is classified in subheading 5407.20.0000, HTSUSA, as a woven fabric of synthetic strip not exceeding 5 mm in apparent width. See HRL 084348 of August 3, 1989, and HRL 084744 of August 29, 1989.

Samples 1 from each letter (classified in HRL 084744) and samples 4 (classified in HRL 084348) and 9 are not at issue. The remaining fabric samples which have been coated with varying amounts of color concentrate added or ampacet fire retardant present are at issue with classification in heading 5903, HTSUSA, being sought. In order to be classified in heading 5903, HTSUSA, as coated fabrics, these samples must meet the requirements of Note 2, Chapter 59. One of the requirements is that the plastic coating be visible to the naked eye with no account being taken of any resulting change in color.

Since color change must be disregarded in examining coated fabrics to determine if the coating is visible to the naked eye, the addition of a color concentrate, in whatever amount, should not affect the determination that a fabric is or is not coated for classification purposes. Customs has taken the position that the coating is visible when it creates a change in the surface character of the fabric. Having examined the submitted samples from your first letter in a well-lighted room, we believe that the coatings on samples 2, 3, 5, 6, and 7 fail to meet the visibility requirement of Note 2, Chapter 59. The addition of the color concentrate merely affects the color of the coating which we must disregard.

As for sample 8, the embossing treatment is visible if one looks very closely at the fabric; however, the plastic coating itself is not readily visible.

Samples 2 and 3 from the second letter which are coated on one and both sides, respectively, appear to have smoother surface areas on the coated sides. The underlying strips have been partially obscured, especially in sample 3. Therefore, we consider the plastic coatings on samples 2 and 3 to be visible because they have altered the surface character of the fabric, albeit in sample 2 only slightly.

Note 2(a), Chapter 59, excludes from classification in heading 5903 textile fabrics in which the fabric is either completely embedded in plastics or entirely coated or covered on both sides with plastics, provided the coating or covering meets the visibility test. These fabrics are classifiable in Chapter 39. Since sample 3 is coated on both sides with visible plastics, it is classifiable in Chapter 39.

HOLDING:

Samples 2, 3, 5, 6, 7 and 8 from the first letter are classifiable in subheading 5407.20.0000, HTSUSA, which provides for woven fabrics of synthetic strip. The fabrics fall within textile category 620 and are dutiable at 13.6 percent ad valorem as a product of Canada.

Sample 2 from the second letter is classifiable in subheading 5903.90.2500, HTSUSA, as a textile fabric impregnated, coated, covered or laminated with plastics, other, of man-made fibers. The fabric falls within textile category 229 and is dutiable at 6.8 percent ad valorem as a product of Canada.

Sample 3 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/m squared: products with textile components in which man-made fibers predominate by weight over any other single textile fiber: other. The fabric falls within textile category 229 and is dutiable at 6.8 percent ad valorem as a product of Canada.

The designated textile and apparel category may be subdivided into parts. If so, the visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available, we suggest you check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service, which is updated weekly and is available for inspection at your 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 your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director
Commercial Rulings Division

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