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HQ 957850




July 5, 1995

CLA-2 R:C:T 957850 CMR

CATEGORY: CLASSIFICATION

TARIFF NO.: 5903.90.2500

Mr. Jose Rodriguez
Rodenas & Rivera
Calle Murcia
11 02400 Hellin (Albacete)
Spain

RE: Classification of woven polypropylene fabric laminated with polypropylene/polyethylene plastic; Modification of NYRL 899706 of July 27, 1994

Dear Mr. Rodriguez:

This ruling is in response to your request of August 31, 1994, that Customs reconsider its decision in NYRL 899706 in which we classified a woven polypropylene fabric coated with plastic in subheading 5407.20.0000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). That tariff provision provides for woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404, woven fabrics obtained from strip or the like. Classification in heading 5407, HTSUSA, was based upon Customs belief that the plastic coating was not visible to the naked eye and thus, classification in heading 5903, HTSUSA as a coated or laminated fabric was precluded. Fabric samples in the coated and uncoated condition were received by this office along with your correspondence requesting we review our earlier decision.

Pursuant to section 625, Tariff Act of 1930 (19 U.S.C. 1625), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993) (hereinafter section 625), notice of the proposed modification of NYRL 899706 was published May 31, 1995, in the Customs Bulletin, Volume 29, Number 22.

FACTS:

The coated fabric was identified in NYRL 899706 as code E909. The fabric is composed of 100 percent polypropylene strips measuring under 2 millimeters in width. The fabric is laminated -2-
on one surface with a polypropylene/polyethylene copolymer type plastic. The Customs laboratory in New York analyzed the sample fabric and determined the following:

Denier in warp: 1155
Denier in filling: 1852
Thickness of fabric: 0.62mm
Thickness of lamination: 0.07mm
Total thickness: 0.69mm
Weight of fabric: 203.5g (83.4 percent)
Weight of lamination: 40.7g (16.6 percent) Total weight: 244.2g (100 percent)

The polypropylene strips used to weave the fabric are white in color. The plastic laminate material is clear.

The woven polypropylene fabric is used in the manufacturing of flexible intermediate bulk containers (large bags) used to ship or transport materials between 1,000 and 4,000 pounds. The fabric will be imported into the United States from Spain.

ISSUE:

Is the fabric at issue properly classified as a coated or laminated fabric of heading 5903, HTSUSA, or was it properly classified in NYRL 899706 as a woven fabric of heading 5407, HTSUSA?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRIs). GRI 1 provides that "classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to [the remaining GRIs taken in order]."

Heading 5903, HTSUSA, provides for textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902. Textile fabrics classified in this heading must meet the terms of Note 2 of Chapter 59. This note states is relevant part:

2(a) Textile fabrics, impregnated, coated, covered or laminated with plastics, whatever the weight per square meter and whatever the nature of the plastic material (compact or cellular), other than:

(1) Fabrics in which the impregnation, coating or covering cannot be seen with the naked eye (usually chapters 50 to 55, 58 or 60); for the -3-
purpose of this provision, no account should be taken of any resulting change of color;

Therefore, for classification in heading 5903, HTSUSA, the pertinent test is whether the plastic coating on the woven polypropylene fabric is visible to the naked eye.

In determining whether a plastic coating or lamination is visible to the naked eye, changes in color must be ignored. Customs has stated in rulings that we cannot consider such things as a change in the "feel" of the fabric (See, HRL 083540 of October 3, 1989), or changes in light reflection such as a dulling or sheen which may be the result of a plastics application (See, HRL 084285 of July 20, 1989). These factors could be the effects of a plastics application or of other treatments to a fabric. They are not, however, the visible plastics material itself.

The plastics material must be visibly distinguishable from the fabric. In past rulings, Customs has looked to whether the plastics application has visibly altered the surface character of a fabric. In such instances, Customs has taken the view that in viewing the change in the surface character, it is the plastics material which we are seeing and thus the fabric is considered coated. See, HRL 082219 of November 21, 1988, and HRL 083285 of December 28, 1989. In addition, Customs has stated that the ability to see plastic in the interstices of fabric is evidence that the fabric is coated. When viewing fabric to determine if a plastics material is present, it is permissible to view the fabric from various perspectives: frontal, cross-sectional, and by holding it up to light. See, HRL 086846 of July 23, 1990.

Viewing the submitted sample at an angle to a cross-section of the fabric, a clear flat plastic sheet may be seen at the edges of the fabric. This office also believes that the surface character of the coated sample is different from that of the uncoated sample. Due to the fact the plastics application is clear, we can still view the weave, but it no longer has the depth apparent in the uncoated sample. Based upon our observations, it is our view that the plastic coating is visible and therefore the fabric is classifiable as a coated fabric in heading 5903, HTSUSA.

HOLDING:

The submitted coated fabric sample is classifiable in subheading 5903.90.2500, HTSUSA, as a textile fabric of man-made fibers, impregnated, coated, covered or laminated with plastics.

Goods classified in this provision fall within textile category 229 and are dutiable at 8.4 percent ad valorem.

NYRL 899706 of July 27, 1994, is modified in regard to the classification of the coated fabric E909 to reflect the classification set forth above.

In accordance with section 625, this ruling will become effective 60 days after its publication in the Customs Bulletin. Publication of rulings or decisions pursuant to section 625 does not constitute a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations (19 CFR

The designated textile and apparel category 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 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.

Sincerely,

John Durant, Director
Commercial Rulings Division

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