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HQ 089548


October 17, 1991

CLA-2 CO:R:C:T 089548 CRS

CATEGORY: CLASSIFICATION

TARIFF NO.: 5903.90.2500

District Director
U.S. Customs Service
Patrick V. McNamara Building
477 Michigan Avenue
Detroit, MI 48266

RE: Application for further review of protest no. 3805-0-000017; automotive upholstery fabric treated with acrylic plastic where plastic is visible to the naked eye is considered coated for tariff purposes.

Dear Mr. Morandini:

This is in reply to an application for further review of Protest No. 3805-0-000017 dated May 31, 1990, filed by Cortez Customhouse Brokerage Co. on behalf of Courtaulds Automotive Products. Additional submissions were submitted on behalf of Courtaulds by Tompkins & Davidson in letters dated August 29, 1990, and December 26, 1990. Samples were provided.

FACTS:

The merchandise in question is automotive upholstery fabric, style no. TZ-147, style name "Manchester." The fabric is made from 100 percent polyester, twill weave, man-made fiber, and is coated on one side with a fire retardant, acrylic plastic. Protestant states that the total weight of the fabric in its coated condition is approximately 473 30 grams per square meter while the coating weighs approximately 100-110 grams per square meter.

The style TZ-147 fabric has been imported in a range of colors, of which four samples were submitted with the protest. In addition, five other samples of the fabric obtained by the port of entry have been examined. It should be noted that the amount of coating applied differs in some instances as between the submitted samples and the samples obtained from the port of entry. For example, the dark red fabric sample submitted with the protest is heavily coated such that the coating has in large measure obscured the underlying fabric. In contrast, the dark red fabric sample obtained by the port of entry has a much lighter coating which has matted the fabric and blurred the definition of the weave.

The style TZ-147 colors are dark grey, new grey, beige cognac, dark red and medium blue. The fabrics are manufactured in and imported from England.

ISSUE:

The issue presented is whether the coating applied to the fabric in question is visible to the naked eye such that the fabric is classifiable under the provision for coated fabrics of heading 5903, Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

LAW AND ANALYSIS:

Heading 5903, HTSUSA, provides for textile fabrics coated with plastics. Note 2(a), Chapter 59, HTSUSA, limits the scope of heading 5903 to those fabrics in which the coating can be seen with the naked eye. The note provides further that "no account is to be taken of any resulting change in color."

We are advised by the National Import Specialist that the fabrics in question should not be considered coated for tariff purposes since what the naked eye perceives is not the presence but rather the effect of plastics. However, Note 2 requires only that coatings be visible to the naked eye, except for those coatings which are visible only as a result of a change in color. There is no mention of "effect" in the exclusionary language of the legal note, other than indirectly, viz., the reference to color.

Consideration of "effect" as opposed to "presence" was introduced in Headquarters Ruling Letter (HRL) 084165 dated June 26, 1989, where we stated with regard to Note 2:

In regard to this last criterion, Customs is of the view that no account should be taken of any resulting change in only shine, reflectivity, dullness, or other property which causes the viewer to see the effect rather than the presence of plastics material (emphasis added).

Id. at 2.

We continue to adhere to this view. Nevertheless, in this instance, the coating has visibly and significantly affected the fabric by blurring or matting its surface. The plastic coating is particularly visible on the individual fibers to which it has adhered. What the eye perceives therefore is not the effect, but indeed the presence, of a plastics material.

It has also been suggested, based on the Harmonized Commodity Description and Coding System, Explanatory Notes (EN), specifically EN 59.03, that fabrics coated with fire retardant acrylic coatings, such as those at issue, are not classifiable in heading 5903. EN 59.03, 816, provides in pertinent part that:

Textile fabrics in which the impregnation, coating or covering cannot be seen with the naked eye or can be seen only by reason of a change in colour usually fall in Chapters 50 to 55, 58 or 60. Examples of such fabrics are those impregnated with substances designed solely to render them crease-proof, moth-proof, unshrinkable or waterproof (e.g., waterproof gabardines and poplins)....

EN 59.03 elaborates on Note 2, Chapter 59, by providing examples of coatings that generally are not visible to the naked eye. It does not impose further restrictions on the scope of heading 5903. The only legal constraints are those enumerated in Note 2, Chapter 59, HTSUSA.

Accordingly, since the fabrics in question have been coated with plastics material that is visible to the naked eye, they are classifiable in heading 5903.

HOLDING:

The fabric in question is classifiable in subheading 5903.90.2500, HTSUSA, under the provision for textile fabrics, impregnated, coated, covered or laminated with plastics, other than those of heading 5902; other; of man-made fibers; other; other. The fabric is dutiable at the rate of 8.5 percent ad valorem and is subject to textile quota category 229.

Since reclassification of the merchandise of the merchandise as indicated above will result in a lower rate of duty than claimed, you are instructed to allow the protest in full. A copy of this decision should be attached to the Form 19 Notice of Action.

Sincerely,


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