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HQ 087945


January 16, 1991

CLA-2 CO:R:C:G 087945 KWM

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.3030

Mr. Daniel C. Holland
District Director of Customs
United States Customs Service
909 First Avenue
Room 2039
Seattle, Washington 98174

RE: Protest Number 3001-90-101052; Textile coated, covered or laminated with plastics; Plastic sheet; Travel bags and similar bags; Outer surface; Tactile and visible.

Dear Mr. Holland:

This is in regard to the Application for Further Review of protest number 3001-90-101052, dated June 29, 1990 by the Seattle district office. We hold here that the protest should be denied for the following reasons.

FACTS:

The goods at issue are described as "Time Bandit" waist packs. They are waist packs, or zippered pockets for wearing around the waist by means of a webbing strap. A large clock has been attached to the front of the pack. The pocket is made of a woven plastics material, which has been coated with plastics, to simulate the appearance of nylon. The webbing strap is of an unidentified material. The clock was not present in the sample we received. The goods are produced in Hong Kong.

At the time of importation, the importer asserted that the goods should be classified under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) subheading for other goods with an outer surface of plastic sheeting. Customs reclassified the goods under the provision for other goods with an outer surface of textile materials, and subjected the goods to redelivery. Importer has filed this protest for exclusion of merchandise from entry.

ISSUE:

Do the goods have an outer surface of textile materials, of plastic sheeting, or of neither material?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI's). The systematic detail of the harmonized system is such that virtually all goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relevant Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI's may be applied, taken in order.

The goods at issue here are classified in heading 4202, HTSUSA, as other containers, similar to those enumerated in the heading:

4202 . . . ; traveling bags, toiletry bags, knapsacks and backpacks, . . . of plastic sheeting, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials;

To be classified here, merchandise such as this must be "of . . . or wholly or mainly covered with" one of the materials set out in the heading. Two of those materials relevant here, are "textile materials" and "plastic sheeting." Under heading 4202, HTSUSA, classification in this case is based on what material comprises the "outer surface" of the article. The outer surface is that material which is tactile and visible. While the outer surface of the pack has the appearance of nylon fabric (as the manufacturer intended), we know that the material here is coated or otherwise combined with a plastics substance. The basis for the importer's claim, as we understand it, is that either the plastic coating material, or the combined woven material and plastics are more properly considered to be " an outer surface of plastic sheeting", classified in subheading 4202.92.4500, HTSUSA.

We do not agree with the importer's assertions. First, we do not believe that the presence of the plastic coating alone constitutes plastic sheeting, and secondly, we do not believe that the textile and plastics combination has on outer surface of plastic sheeting.

The plastic coating by itself cannot be considered a plastic sheet. It is not, nor has the importer indicated that it has ever acquired the properties of sheet form, namely that it has length and breadth significantly greater than the width. Instead, we believe it is applied to the fabric in a liquid form. It is more properly considered to be one element of a textile and plastics combination.

Combinations of textiles and plastics are governed by several notes to the HTSUSA. Among those, we find the following Legal Note to Chapter 59, HTSUSA:

2. Heading No. 59.03 applies to:
(a)Textile fabrics, impregnated, coated, covered or laminated with plastics, whatever the weight per square metre 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 being taken of any resulting change of color;

. . .

(3)Products in which the textile fabric is either completely embedded in plastics or entirely coated or covered on both sides with such material, provided that such coating or covering can be seen with the naked eye with no account being taken of any resulting change of color (chapter

. . .

The effect is to classify as a textile fabric that material which retains the character of a textile, and to classify as a plastic that material which has achieved the character of plastics.

In this case, the Import Specialist determined that the plastics applied to the PVC textile was not visible to the naked eye. We find no basis to revoke that finding. Therefore, according to Chapter Note 2(a)(1), above, the material here would be classified as a textile fabric. It has not acquired the character of a plastic sheet by virtue of the coating layer (as anticipated by Chapter Note 2(a)(3), above). Additional U. S. Note (2) to Chapter 42, HTSUSA, provides:

For the purposes of . . . 4202.92, articles of textile fabric impregnated, coated, covered or laminated with plastics (whether compact or cellular) shall be regarded as having an outer surface of textile material or of plastic sheeting, depending upon whether and the extent to which the textile constituent or the plastic constituent makes up the exterior surface of the article.

The Import Specialist found that the tactile and visible outer surface is that of the woven textile, despite the presence of the coating. We find no basis to revoke that finding as well. An examination of the goods reveals that visual and tactile appearance of the outer surface is that of a textile. The textile constituent makes up the exterior surface to the extent that the character of the merchandise is that of the textile. In fact, according to the information provide, that was precisely the intent behind the manufacturing process used: to simulate the appearance of nylon, itself a woven textile. It was therefore correctly classified in subheading 4202.92.3030, HTSUSA.

HOLDING:

The protest is hereby denied. The instant merchandise, a waist pack with clock, made of a textile material coated with plastics not visible to the naked eye, and having the visual and tactile appearance of a textile material, is classified in subheading 4202.92.3030, HTSUSA. The applicable duty rate is 20 percent ad valorem. Goods classified in this subheading are subject to quota category 670.

The designated textile and apparel category may be subdivided into parts. If so, the visa and quota category 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 issuance of the U.S. Customs Service, which is updated weekly and is available 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 the importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John A.
Durant
Director

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