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HQ 956200




September 7, 1994

CLA-2 CO:R:C:T 956200 SK

CATEGORY: CLASSIFICATION

TARIFF NO.: 5407.42.0030

John Clayton
Bainbridge/Aquabatten, Inc.
252 Revere Street
Canton, MA 02021

RE: NYRL 894819 (3/31/94) affirmed; classification of "coated fabric"; visible to the naked eye prerequisite of Chapter Note 2(a)(1) to Chapter 59; subheading 5407.42.0030, HTSUSA. Dear Mr. Clayton:

This is in response to your letter of April 5, 1994, in which you request a reconsideration of New York Ruling Letter (NYRL) 894819 which was issued to you on March 31, 1994. In NYRL 894819, two samples of polyurethane coated nylon woven fabric were classified under subheading 5407.42.0030, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Upon review of NYRL 894819, this office affirms the holding in that case. Our analysis follows.

FACTS:

The two fabric samples classified in NYRL 894819 were referenced A-Red and B-Gray. Laboratory analysis revealed that A-Red was composed of 95 percent filament nylon and 5 percent polyurethane coating. The fabric component weighed 143.78 grams per square meter and the polyurethane coating weighed 7.46 grams per square meter. The total weight of sample A-Red was 151.24 grams per square meter. The fabric was manufactured using 420 denier yarns in both the warp and filling and contained 18.8 single yarns per centimeter in the warp and 13.3 single yarns per centimeter in the filling.

Laboratory analysis revealed that B-Gray was composed of 92 percent filament nylon and 8 percent polyurethane coating. The fabric component weighed 143.44 grams per square meter and the polyurethane coating weighed 11.87 grams per square meter. The total weight of sample B-Gray was 155.31 grams per square meter. The fabric was manufactured using 420 denier yarns in both the warp and filling and contained 18.8 single yarns per centimeter in the warp and 13.3 single yarns per centimeter in the filling.

ISSUE:

What is the correct classification of the subject merchandise?

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 "[T]extile 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. Accordingly, the sole criterion upon which Customs is to determine whether fabric is coated for purposes of classification under heading 5903, HTSUSA, is based on visibility: 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 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 Headquarters Ruling Letter (HRL) 082644 of March 2, 1990.

We recognize that the "visible to the naked eye" test for determining whether fabric is classifiable as coated creates a rather subjective standard in that it requires individuals to determine what is visually discernable and what is not. This test, however, is the only standard Customs is authorized to utilize. Legal Note 2(a) is an international legal note. As such, the United States is bound by its terms, as are the other parties to the International Convention on the Harmonized Commodity Description and Coding System, and this agency is not free to unilaterally disregard or alter its language. In the instant case, we do not agree that we have been arbitrary in the assessment of the fabrics the subject of NYRL 894819. As the
plastic coatings on styles A-Red and B-Gray were deemed not visible to the naked eye, these fabrics were correctly precluded from classification under heading 5903, HTSUSA. Classification of the subject merchandise is proper under heading 5407, HTSUSA, which provides for, in pertinent part, woven fabrics of synthetic filament yarn.

HOLDING:

NYRL 894819 is affirmed.

Styles A-Red and B-Gray are classifiable under subheading 5407.42.0030, HTSUSA, under the provision for "[W]oven 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: dyed... weighing not more than 170 grams per square meter," dutiable at a rate of 17 percent ad valorem. The textile quota category is 620.

The designated textile and apparel categories may be subdivided into parts. If so, the 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 updated weekly and is available for inspection at the local Customs office.

Due to the nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact the local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director
Commercial Rulings Division

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