CLA-2 CO:R:C:T 954825 SK
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-
93-100002; classification of "coated fabric"; visible to the naked
eye prerequisite of Chapter Note 2(a)(1) to Chapter 59; subheading
5407.60.2035, HTSUSA; 600 denier woven polyester fabric with
polyurethane coating.
Dear Madam:
This is a decision on application for further review of a
protest timely filed on December 24, 1992, by Paul E. Linet on
behalf of his client, American Tourister, against your decision
regarding the classification of coated fabric imported from Taiwan.
Two entries of the subject merchandise were made at the port of
Jacksonville on April 20, 1992, and July 22, 1992. A sample of the
subject fabric has been submitted to this office for examination.
FACTS:
The merchandise at issue, referenced American Tourister Part
Number 40022-0440, consists of 600 D woven polyester fabric coated
with clear polyurethane. Independent lab analysis procurred by the
protestant states that the coated fabric weighs 221 grams per
square meter and is comprised of 17.2 percent polyurethane coating
by weight.
Protestant states that this merchandise is properly classified
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 heading 5903 will
govern the classification of a coated fabric so long as the
impregnation, coating or covering can be seen with the naked eye
with no account being taken of a resulting change in color.
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Customs' position is that classification of this fabric is
proper under subheading 5407.60.2035, 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.
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 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.
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
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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 discern 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 between the properties of 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
2(a)(1).
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 heading
5407, HTSUSA, which provides for, in pertinent part, woven fabrics
of syntheic filament yarn.
HOLDING:
The merchandise at issue is classifiable under subheading
5407.60.2035, 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 non-textured polyester filaments:
other... dyed: weighing 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