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HQ 953407


July 12, 1993

CLA-2 CO:R:C:T 953407 SK

CATEGORY: CLASSIFICATION

TARIFF NO.: 5407.44.0030

District Director
U.S. Customs Service
4430 E. Adamo, ste. 301
Tampa, Florida 33605

RE: Decision on Application for Further Review of Protest No. 1803-93-10001; classification of "coated fabric"; visible to the naked eye prerequisite of Chapter Note 2(a)(1) to Chapter 59; subheading 5407.44.0030, HTSUSA.

Dear Madam:

This is a decision on application for further review of a protest timely filed on behalf of American Tourister, on February 2, 1993, against your decision regarding the classification of coated fabric. The subject merchandise was entered at the port of Jacksonville on January 7, 1992, June 16, 1992 and July 3, 1992. The first two entries were liquidated October 1, 1992. The July 3 entry was liquidated on September 28, 1992.

FACTS:

The merchandise at issue is 200 D woven nylon printed fabric coated with polyurethane and produced in Taiwan. The weight of the woven nylon material is 104.88 grams per square meter. The sample submitted to this office was taken from an entry not the subject of this protest, but nevertheless identical to the fabric under review.

Protestant believes that this merchandise was properly entered under subheading 5903.20.2500, HTSUSA, as "textile fabrics, impregnated, coated, covered or laminated with plastics ... ." Note 2(a)(1) to Chapter 59, HTSUSA, states that this subheading applies provided that the impregnation, coating or covering can be seen with the naked eye with no account being taken of a resulting change in color.

Customs' position is that classification of this fabric is proper under subheading 5407.44.0030, HTSUSA, as uncoated fabric. This classification is predicated on the Port Director's position that the clear plastic coating on the imported fabric is not visible to the naked eye as required by Note 2(a)(1) to Chapter 59, HTSUSA.

The merchandise at issue is currently the subject of demand for redelivery. Counsel for American Tourister has stated that the goods have already left the warehouse and have entered the stream of commerce.

ISSUE:

Whether the clear plastic coating on the fabric at issue is visible to the naked eye so as to warrant classification in Chapter 59 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 requires that classification be determined according to the terms of the chapter notes and, unless otherwise required, according to the remaining GRI's. Where 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.

Chapter Note 2(a)(1) to Chapter 59 of the tariff schedule states that heading 5903 applies to textile fabrics impregnated, coated, covered or laminated with plastics other than fabrics in which the impregnation, coating, covering or lamination cannot be seen with the naked eye. No account is to be taken of any resulting change in color.

The sole criterion upon which Customs is to determine whether fabric is coated for purposes of classification under heading 5903, HTSUSA, is clear and unambiguous: fabric is classifiable in Chapter 59 if the plastic coating is visible to the naked eye. This standard does not allow the examiner to take the "effects" of plastic into account. Plastic coating will often lend a sheen to fabric, result in a change of color, or increase a fabric's stiffness; these are factors which, while indicative of the presence of plastic, may not be taken into account in determining whether the plastic itself is visible to the naked eye. We do note, however, that if upon unaided visual
examination there is the suggestion of the presence of plastic coating, it is then within Customs' discretion to examine the fabric under magnification. See HRL 082644 of March 2, 1990.

In protestant's statement to Customs, several Headquarter Ruling Letters (HRL's) are cited which interpret Chapter Note 2(a)(1) to Chapter 59. Specifically, protestant cites HRL 089568, dated August 16, 1991, which held that when a finished coated fabric is indistinguishable from the base fabric itself, the coating on the fabric is deemed not visible to the naked eye. Protestant erroneously infers that the converse of this statement is true: that if there is a visible difference between the coated and uncoated portions of a fabric, the coated portion is therefore "visible" for purposes of classification within Chapter 59. This is not true. As stated above, mere "effects" of plastic coating such as sheen and stiffness are not permissible grounds for determining that coating is visible. One may be able to discern between coated and uncoated fabric and still not see the plastic coating itself, but rather the effects of the coating. In HRL 089568 Customs held that where there was no difference between coated and uncoated portions of fabric, it logically followed that the coating was not visible. This approach does not mean, as protestant implies, that if the examiner can see a difference between coated and uncoated portions of fabric that this is sufficient evidence to warrant a finding that the coating is "visible".

In this instance, protestant believes that comparison of the final coated fabric to the base fabric reveals "a distinctive difference in texture and physical characteristics." While there may be slight differences in appearance between the coated portion of the fabric at issue and the uncoated base fabric, this does not necessarily mean that the plastic coating is visible as within the standard dictated in Note 2(a)(1) to Chapter 59. Examination of the sample submitted to this office yields the finding that there is a slight difference in color between the coated and the uncoated portions. This is not a basis for determining visibility as is expressly stated in Chapter Note

Protestant also cites HRL 950472, dated October 21, 1991, in which this office held that nylon fabric coated on one side by polyurethane was visible to the naked eye because it "blurred the surface of the fabrics." Physical examination of the subject fabric reveals no such blurring; the underlying weave of the fabric is distinct. Moreover, when comparing the coated portion of the fabric with the uncoated portion, both have equally distinct weaves.

As the plastic coating is not visible to the naked eye, this fabric is precluded from classification under heading 5903, HTSUSA. Classification of the subject merchandise is proper under subheading 5407.44.0030, HTSUSA.

HOLDING:

The merchandise at issue is classifiable under subheading 5407.44.0030, HTSUSA, under the provision for "woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404: other woven fabrics, containing 85 percent or more by weight of filaments of nylon or other polyamides: printed... weighing not more than 170 grams per square meter", dutiable at a rate of 17 percent ad valorem. The textile quota category is 620.

As the rate of duty under the classification indicated above is the same as the rate under which the subject merchandise was entered, you are instructed to deny the protest in full. A copy of this decision should be furnished to the protestant with the Form 19 notice of action.

Sincerely,

John Durant, Director
Commercial Rulings Division

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