CLA-2 CO:R:C:G 085350 PR
William D. Outman, II, Esquire
Baker & McKenzie
815 Connecticut Avenue, N.W., Suite 1100
Washington, D.C. 20006-4078
RE: Reconsideration of HRL 084804; Coated fabrics
Dear Mr. Outman:
This ruling is in response to your letter of August 15,
1989, on behalf of Samsonite Corporation, requesting that
Customs reconsider its decision in its ruling of June 27,
1989, file (HRL) 084804, which concerned the classification
of two fabrics.
FACTS:
New samples of the fabrics (styles 843 and 886) were
submitted. These fabrics (and the previously submitted
samples) are made of woven polyester filament yarns and have
polyurethane plastics applied to one surface. While they
were described in HRL 084804 as being constructed with a
basket weave, closer examination shows that both the new and
the prior samples are constructed as follows: (1) Style 843
is made with a plain under one/over one (-_-_-_-)weave; (2)
Style 886 appears to be made with an under two/over four
(--____--____) weave. In view of the holding in HRL 084804,
we assume for the purposes of this ruling that all the
fabrics concerned are made of yarns which meet the definition
of "high tenacity yarn" found in Note 6 of Section XI.
HRL 084804 held that the polyurethane could not be seen
with the naked eye. Therefore, the fabrics were classified
under Heading 5407, Harmonized Tariff Schedule of the United
States Annotated (HTSUSA), as woven fabrics of man-made
fibers, and not under Heading 5903, HTSUSA, which provides
for textile fabrics "impregnated, coated, covered or
laminated with plastics." We have reviewed the samples and
holding of HRL 084804 and adhere to our ruling on those
samples.
In comparing the submitted samples with the swatches
retained in our case file for HRL 084804, it is obvious that
the polyurethane plastics material on the newly submitted
swatch of style 843 is much more visible than it is on the
sample previously ruled upon. In addition, the new sample
style 886 also appears to have a slightly different amount
of plastics than the style 886 ruled upon in HRL 084804.
ISSUE:
The issue presented is whether the polyurethane plastics
material on the new samples is sufficient to constitute a
coating or covering for the purposes of the HTSUSA, thus
causing the fabrics to be classifiable under Heading 5903.
LAW AND ANALYSIS:
Note 2 to Chapter 59, HTSUSA, states that Heading 5903
applies to:
(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 * * *
for the purpose of this provision, no account
should be taken of any resulting change of color;
* * *
There is no indication in the Harmonized Commodity
Description and Coding System, Explanatory Notes, which is
the official interpretation of the HTSUSA at the
international level, on how the "naked eye" test should be
applied. Accordingly, it is Customs position that, in the
absence of legislative intent, the plain meaning of the
statutory language will be given effect. If what the
unaided eye perceives when viewing a fabric with a plastics
application is nothing more than what would be perceived if a
dye had been applied to the fabric, then the fabric is not
coated for purposes of Note 2 of Chapter 59. However, if the
unaided eye perceives the existence of an added substance,
then that substance qualifies as a "coating or covering"
within the purview of Note 2, provided that the plastics is
sufficiently spread over the entire surface of the fabric. A
change in the reflectivity, sheen, etc., of a fabric is
considered to be the perception of the effect of a plastics
application and not a perception of the plastics itself.
Applying this test to the subject samples, it is clear
that the new sample of style 843 qualifies as coated for
purposes of Note 2. While less clear, the plastics
application on the new sample of style 886 still does not, in
our view, qualify as a "coating or covering".
HOLDING:
Our ruling in HRL 084804 is affirmed.
Fabric as represented by the new sample of style 843 is
classifiable under the provision for other polyurethane
coated or covered fabrics of man-made fibers, in Subheading
5903.20.25, HTSUS, and dutiable, as a product of Taiwan, at
the rate of 8.5 percent ad valorem.
Fabric as represented by the new sample of style 886, as
well as the old styles 843 and 886, are classifiable under
the provision for woven fabrics of synthetic filament high
tenacity polyester yarns, in Subheading 5407.10.00, HTSUS,
with duty at the rate of 17 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division