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HQ 955429


December 7, 1993

CLA-2 CO:R:C:T 955429 SK

CATEGORY: CLASSIFICATION

TARIFF NO.: 5903.20.2500; 3921.90.1500

Bruce Comstock
Cameron Balloons
7399 Newman Blvd.
Dexter, MI 48103

RE: Revocation of HRL 088988 (7/22/91); classification of plastic-coated nylon fabric; Legal Note 2(a)(1)(3) to Chapter 59; coating must be visible to the naked eye to warrant classification within headings 5903 and 3921, HTSUSA; 5903.20.2500; 3921.90.1500; HRL 950022 (9/26/91); San Francisco Newspaper Printing Co. v. U.S., 9 C.I.T. 517, 620 F. Supp. 738 (1985).

Dear Mr. Comstock:

On July 22, 1991, this office issued you Headquarters Ruling Letter (HRL) 088988 in which we denied protest number 3801-91-100093 in full and classified several styles of nylon fabric as uncoated woven fabrics of synthetic filament yarns under subheading 5407.42.0030, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Upon review, that ruling is deemed to be in error. Our analysis follows.

FACTS:

At issue are several styles of plastic-coated nylon fabric. The subject fabrics consist of style numbers N1053 and N2268, which were the subject of HRL 088988, and seven additional fabrics which are similar to styles N1053 and N2268 in that they are made from a woven nylon fabric, but differ in that the polyurethane coating applied to that fabric may also contain a metal compound. Samples of the subject fabrics in both their coated and uncoated states were submitted to this office for examination. In your submission, you describe the various fabric styles in the following manner:

STYLE UNDERLYING TYPE OF % OF COATING SIDES COATED FABRIC COATING DUE TO PLASTIC
N1039; High Polyurethane 16-24 1
N1053; Tenacity
N1061. Nylon
N1075. " Titanium Dioxide 18-26 1
Pigmented Polyurethane
N2268; " Silicone Elastomer 13-19 2
N2340.
CE-0240. " Metal-Pigmented 43-58 1
Polyurethane
CE-7053. " Metal-Pigmented 52-56 1
Polyurethane and
Contact Adhesive
1189/8248.Nylon Metal-Pigmented 35 1
Polyurethane

ISSUE:

Whether the fabrics in question are deemed coated pursuant to Note 2(a)(1) to Chapter 59, HTSUSA, for purposes of classification within headings 5903 and 3921?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification shall be in accordance with the terms of the headings and any relevant section or chapter notes. 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 in the order of their appearance.

Heading 5903 of the Tariff Schedule provides for impregnated, coated, covered or laminated textile fabrics. Note 2(a)(1), Chapter 59, provides that heading 5903 includes all coated fabrics regardless of the weight per square meter or nature of the plastic material, so long as the plastic component can be seen with the naked eye. Chapter Note 2(a)(3) to this section excludes products in which the textile fabric is coated or covered on both sides with plastic; such products are classifiable within Chapter 39 so long as such coating can be seen with the naked eye with no account being taken of any resulting change of colour.

The determinative factor with regard to whether fabric is deemed coated for purposes of classification under either heading 5903 or heading 3921, HTSUSA, is whether the coating is visible to the naked eye. In the instant analysis, it is apparent upon examination of the above-cited styles that they are coated with plastic. This determination is based on a comparison made between the coated sample of each style with its uncoated counterpart. Specifically, we note that in the case of each style, all of the fabric's interstices have been filled with either a polyurethane coating or, in the case of styles N2268 and N2340, a silicone elastomer coating. When held up to a source of light, the interstices in the uncoated samples permit light to shine through. The coated samples leave no visible gaps in the weave of the fabric. This condition was previously held by Customs to be visible evidence of coating. See HRL 950022, dated September 26, 1991. We further note that the plastic coating on each style serves to blur the underlying woven nylon fabric.

Styles N1039, N1053, N1061, N1075, CE-0240, CE-7053 and 1189/8248 are coated with polyurethane on one side and as these coatings are visible to the naked eye, they are classifiable under heading 5903.20.2500, HTSUSA, which provides for, in pertinent part, textile fabrics coated with polyurethane.

Heading 3921, HTSUSA, provides for other plates, sheets, film, foil and strip, of plastics. As styles N2268 and N2340 are visibly coated on both sides with silicone elastomer, classification is proper under subheading 3921.90.1500, HTSUSA, which provides for, in pertinent part, sheets of plastics combined with textile materials, 70 percent or less by weight of plastics.

HOLDING:

HRL 088988 is revoked.

Styles N1039, N1053, N1061, N1075, CE-0240, CE-7053 and 1189/8248 are classifiable under subheading 5903.20.2500, HTSUSA, under the provision for textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902: with polyurethane: of man-made fibers: other: other..., and are dutiable at a rate of 8.5 percent ad valorem. The textile category is 229.

Styles N2268 and N2340 are classifiable under subheading 3921.90.1500, HTSUSA, which provides for other plates, sheets, film, foil and strip, of plastics: other: combined with textile materials and weighing not more than 1.492 kilograms per square meter: other... , dutiable at a rate of 8.5 percent ad valorem. The textile category is 229.

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

In order to ensure uniformity in Customs' classification of this merchandise and eliminate uncertainty, pursuant to section 177.9(d)(1), Customs Regulations (19 CFR 177.9(d)(1)), HRL 088988 is revoked.

In San Francisco Newspaper Printing Co. v. United States, 9 C.I.T. 517, 620 F. Supp. 738 (1985), the Court of International Trade held that Customs is not authorized to rescind a denial of a protest. Therefore, we cannot reconsider our position with respect to the entries at issue in HRL 088988. However, with respect to future importations of the subject merchandise, HRL 088988 will no longer control the classification. Pursuant to section 177.9(a), Customs Regulations (19 CFR 177.9(a)), this ruling letter may be applied to all entries which are unliquidated, or other transactions with respect to which the Customs Service has not taken final action.

Sincerely,

John Durant, Director
Commercial Rulings Division

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