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HQ 086616


May 2, 1990

CLA-2 CO:R:C:G 086616 WAW

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.99.0000

Bruce N. Shulman, Esq.
Stein Shostak Shostak & O'Hara
Suite 806
1101 Seventeenth St., N.W.
Washington, D.C. 20036-4704

RE: Children's Backpack laminated with plastic

Dear Mr. Shulman:

This ruling is in response to your letter, dated March 2, 1990, requesting the tariff classification of a children's backpack under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). The backpack is being imported from the Peoples Republic of China. A sample of the merchandise at issue was submitted along with your request.

FACTS:

The sample merchandise is described as a children's backpack of man-made fiber which has been laminated with a clear non- cellular polyvinyl chloride plastics sheet material. A multi- colored design is printed on the textile material which is visible through the plastic material.

ISSUE:

Whether the backpack is classified under subheading 4202.92.3020, HTSUSA, as travel, sports and similar bags, with an outer surface of textile materials, or whether it is classified under some other provision in the tariff.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) set forth the manner in which merchandise is to be classified under the HTSUSA. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff and any relative section or chapter notes and, unless otherwise required, according to the remaining GRI's, taken in order.

Heading 4202, HTSUSA, includes, inter alia, the following articles:

[t]raveling bags, toiletry bags, knapsacks and backpacks, handbags,. . . and similar containers, . . . of plastic sheeting, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials: Articles of a kind normally carried in the pocket or the handbag.

Additional U.S. Note 1 to Chapter 42, HTSUSA, states:

For the purposes of heading 4202, the expression "travel, sports and similar bags" means goods, other than those falling in subheadings 4202.11 through 4202.39, of a kind designed for carrying clothing and other personal effects during travel, including backpacks and shopping bags of this heading, but does not include binocular cases, camera cases, musical instrument cases, bottle cases and similar containers.

We note that the exemplars cited in the Additional U.S. Note above specifically enumerate backpacks as an article similar to a "travel, sports and similar bags" in subheading 4202.92, HTSUSA. Moreover, we have determined that the appropriate subheading for goods under this subheading is determined by the constituent material of the outer surface. Thus, the issue to be addressed is whether the backpack in the instant case is constructed of materials with outer surface of "plastic sheeting or of textile materials" under subheading 4202.92, HTSUSA, or of "other" material under subheading 4202.99, HTSUSA.

"Plastics and Articles thereof" are classified in Chapter 39, HTSUSA. Legal Note 2(1) to Chapter 39, HTSUSA, states:

2. This chapter does not cover:

(1) Goods of section XI (textile and textile articles);

The Legal Notes to Section XI which covers textiles provide that:

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;

The effect of these provisions in the chapter and section notes is to place within the scope of Chapter 39 those goods which are considered plastics, as that Chapter defines them, and to include those materials regarded as textile materials in Section XI (including Chapter 59). When articles are composed of combinations of plastics and textiles, the notes to the respective chapters define which goods fall within Chapter 39 and which fall within Chapter 59. The Explanatory Notes, which constitute the official interpretation of the tariff at the international level, to Chapter 39, HTSUSA, relating to plastics and textile combinations provide, in pertinent part:

. . . Otherwise, the classification of plastics and textile combinations is essentially governed by Note 1(h) to Section XI, Note 3 to Chapter 56 and Note 2 to Chapter 59. The following products are also covered by this chapter: . . .

(d) Plates, sheets, and strip of cellular plastics combined with textile fabrics, felt or nonwovens, where the textile is present merely for reinforcing purposes.

Heading 5903, HTSUSA, provides for classification of textile products impregnated, coated, covered or laminated with plastics, other than tire cord covered by Heading 5902.

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

Heading No. 59.03 applies to:

(a) Textile fabrics, impregnated, coated, covered or laminated with plastics; . . . other than:

(1) Fabrics in which the impregnation, coating or covering cannot be seen with the naked eye (usually Chapter 50 to 55, 58 or 60); for the purpose of this provision, no account should be taken of any resulting change of colour.

The wording of Note 2(a)(1) ("cannot be seen with the naked eye") is a clear expression by the drafters of the nomenclature that a significant, if not substantial, amount of material must be added to a fabric for it to be considered "impregnated, coated, covered or laminated." The plastics material added to the fabric must be visibly distinguishable from that fabric without the use of magnification.

Applying the statutory test to the submitted article, using normally corrected vision in a well lighted room, it is our opinion that the backpack meets the visibility requirement of Note 2, Chapter 59. It is apparent, based on our examination of the article, that the plastics material added to the textile fabric alters the visual characteristics of the fabric. Although we have determined that the instant merchandise has an outer surface of "plastics," the merchandise is not classified under the subheading which includes travel, sports and similar bags with outer surface of plastic sheeting or of textile materials based on the following analysis.

In the instant case, the outer surface of the goods is composed of a man-made textile material which has been laminated with a non-cellular plastic. The plastic material gives the finished article its smooth finish and appearance. However, Customs has held in prior rulings that a non-cellular plastics material which has been laminated to the outer surface of a textile material is not considered "plastic sheeting" as provided for in the Explanatory Notes to Chapter 39, supra. In addition, the outer surface of the backpack does not qualify as a "textile material" as provided for in subheading 4202.92, HTSUSA, since it is a textile material that has been laminated with plastic. Thus, in this case, the backpack is precluded from classification under subheading 4202.92, HTSUSA, since the outer surface is neither of plastic sheeting, nor of textile material. In short, the outer surface of the backpack is comprised of non-cellular plastics. Accordingly, it is Customs position that the subject merchandise is properly classifiable under subheading 4202.99.0000, HTSUSA.

HOLDING:

Based on the foregoing analysis, it is the opinion of this office that the sample backpack is properly classifiable under subheading 4202.99.0000, HTSUSA, as a travel, sports and similar bags: Other. The applicable rate of duty is 20 percent ad valorem.

Sincerely,


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