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HQ 951041


June 16, 1992

CLA-2 CO:R:C:T 951041 CRS

CATEGORY: CLASSIFICATION

TARIFF NO.: 5603.00.9090

District Director
U.S. Customs Service
Thomas P. O'Neill, Jr. Federal Building
10 Causeway Street, Room 221
Boston, MA 02222-1052

RE: Further review of Protest No. 0401-91-100526; nonwovens; plastics; coagulation coating; General Explanatory Note, Chapter 39; EN 56.03; Note 3(b), 3(c), Chapter 56.

Dear Sir:

This is in response to your memorandum of December 24, 1991, forwarding an application for further review of Protest No. 0401- 91-100526 dated August 8, 1991, and filed on behalf of protestant Bradford Industries, Inc., by the law firm of Lamb & Lerch. AN additional submission was made in a letter to Headquarters dated May 4, 1992. Our decision follows below.

FACTS:

The merchandise in question consists of a nylon nonwoven substrate that has been coated with polyurethane plastics in a coagulation type process. The fabric is composed by weight of 81 percent polyurethane and 19 percent nonwoven polyester, and is marketed under the name "Temasoft."

"Temasoft" is an imitation leather product manufactured in Italy and used in the footwear industry in the construction of linings and uppers. "Temasoft" is imported through the port of Boston, Massachusetts.

Protestant disputes the decision to classify the merchandise at issue in subheading 5603.00.9090, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), and contends that it is classifiable in subheading 3921.13.1500, HTSUSA, under a residual provision covering, inter alia, sheets of plastics: cellular: of polyurethane: combined with textile materials: products with textile components in which man-made fibers predominate by weight over any other single textile fiber: other.

ISSUE:

The issue presented is whether the protested merchandise is properly classifiable as a plate or sheet of plastics, or as a nonwoven.

LAW AND ANALYSIS:

Two headings are relevant for the purposes of this ruling: heading 3921, HTSUSA, which provides for other plates, sheets, film, foil and strip of plastics; and heading 5603, HTSUSA, which provides for nonwovens, whether or not impregnated, coated, covered or laminated.

Counsel for protestant contends the instant merchandise is classifiable in heading 3921, HTSUSA. This position is based on the view that the merchandise at issue is covered by the terms of heading 3921; that heading 3921 is the more specific heading under General Rule of Interpretation (GRI) 3(a); that the product in question has the essential character of plastics rather than of textiles; that nonwovens coated with plastics are classifiable in heading 5603 only if they derive their essential character from the nonwoven; and that classification in heading 3921 is supported by prior rulings.

The classification of plastics and textile combinations is discussed in the Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which although not legally binding, constitute the official interpretation of the Harmonized System at the international level. The EN provide in relevant part that:

[T]he classification of plastics and textile combinations is essentially governed by...Note 3 to Chapter 56 [nonwovens]....The following products are also covered by this Chapter:

(b) Textile fabrics and nonwovens, either completely embedded in plastics or entirely coated or covered on both sides with such material, providing that such coating or covering can be seen with the naked eye with no account being taken with any resulting change in color....

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

General Explanatory Note (EN/AS 4 - February 1989), Chapter 39, 554. Subnotes (b) and (c) supra restate verbatim the language of Note 3(b) and (c), Chapter 56, HTSUSA. Accordingly, the instant merchandise is classifiable in heading 3921 if: (1) the nonwoven textile portion is completely embedded in plastics; (2) the nonwoven is visibly coated on both sides with plastics; or (3) the product consists of a sheet of plastics combined with textiles in such a manner that the textile component acts merely as reinforcement.

The merchandise at issue is an imitation leather product made from a nonwoven substrate visibly coated on one side with plastics by means of a coagulation process. We have been advised by the National Import Specialist responsible for this line of merchandise that in a coagulation coating, plastics material is applied to a textile substrate in a fluid, or "uncured" state. Thus while the textile portion of the instant merchandise is coated with plastics, it has not been combined with a plate or sheet of plastics. Instead plastics is applied in a liquid state and cured to form the external surface of the fabric. Customs therefore does not consider the product in question to be a plate, sheet, etc., of heading 3921.

Furthermore, the instant merchandise is visibly coated with plastics on only surface. Note 3(b), Chapter 56, HTSUSA, and the General Explanatory Note, Chapter 39, state that nonwovens are classifiable in Chapter 39 only of they are entirely coated on both sides with plastics material that is visible to the naked eye.

Heading 5603 covers nonwovens, whether coated, covered or impregnated with plastics, whatever the nature off the plastics material. The instant merchandise consists of a nonwoven fabric coated with plastics. It is not excluded from heading 5603 by Note 3(b), Chapter 56, since it is visibly coated with plastics on only one side. Similarly, Note 3(c), Chapter 56, which provides that plates or strips of cellular plastics combined with nonwovens where the textile material is present merely for reinforcing purposes, does not exclude the protested merchandise from heading 5603. In this regard EN 56.03 provides that:

Those [nonwovens] covered on one or both surfaces (by gumming, sewing or by any other process) with textile fabric or with sheets of any other material are classified in [heading 5603] only if they derive their essential character from the nonwoven.

EN 56.03, EN/AS 3, July 1988, 775. The instant merchandise is coated with plastics in a coagulation process. It is not combined with other materials, e.g., by gumming or sewing, as envisaged by EN 56.03. Consequently, in Customs' opinion the protested merchandise is properly classifiable in heading 5603.

Nevertheless, in support of his client's position, counsel for protestant cites Headquarters Ruling Letter (HRL) 081489 of March 27, 1989, wherein certain imitation leather products, including a nonwoven, were classified in heading 3921. However, the merchandise of HRL 081489 is distinguishable from that now at issue. Some articles were coated on both sides with plastics that was visible to the naked eye; others consisted of a sheet of cellular plastic laminated to a textile backing where the backing acted merely as reinforcement. Given that these products were coated with plastics on both sides or consisted of sheets of plastics laminated to textile material, they were properly classifiable in heading 3921.

Since the instant nonwoven is not classifiable in heading 3921, neither the question of specificity under GRI 3(a), nor the question of essential character under GRI 3(b) arises with regard to this product.

HOLDING:

The merchandise in question is classifiable in subheading 5603.00.9090, HTSUSA, under the provision for nonwovens, whether or not impregnated, coated, covered or laminated: other: other: other nonwovens, whether or not impregnated, coated or covered: other: of staple fibers. It is dutiable at the rate of 12.5 percent ad valorem and is subject to textile category 223.

You are instructed to deny the protest in full. A copy of this decision should be attached to the Form 19 Notice of Action.

Sincerely,


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