CLA-2 CO:R:C:G 086616 WAW
Bruce N. Shulman, Esq.
Stein Shostak Shostak & O'Hara
Suite 806
1101 Seventeenth St., N.W.
Washington, D.C. 20036-4704
RE: Children's Backpack laminated with plastic
Dear Mr. Shulman:
This ruling is in response to your letter, dated March 2,
1990, requesting the tariff classification of a children's
backpack under the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA). The backpack is being imported from
the Peoples Republic of China. A sample of the merchandise at
issue was submitted along with your request.
FACTS:
The sample merchandise is described as a children's backpack
of man-made fiber which has been laminated with a clear non-
cellular polyvinyl chloride plastics sheet material. A multi-
colored design is printed on the textile material which is
visible through the plastic material.
ISSUE:
Whether the backpack is classified under subheading
4202.92.3020, HTSUSA, as travel, sports and similar bags, with an
outer surface of textile materials, or whether it is classified
under some other provision in the tariff.
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) set forth the
manner in which merchandise is to be classified under the HTSUSA.
GRI 1 requires that classification be determined first according
to the terms of the headings of the tariff and any relative
section or chapter notes and, unless otherwise required,
according to the remaining GRI's, taken in order.
Heading 4202, HTSUSA, includes, inter alia, the following
articles:
[t]raveling bags, toiletry bags, knapsacks and
backpacks, handbags,. . . and similar containers, . . .
of plastic sheeting, of textile materials, of
vulcanized fiber or of paperboard, or wholly or mainly
covered with such materials: Articles of a kind
normally carried in the pocket or the handbag.
Additional U.S. Note 1 to Chapter 42, HTSUSA, states:
For the purposes of heading 4202, the expression
"travel, sports and similar bags" means goods, other
than those falling in subheadings 4202.11 through
4202.39, of a kind designed for carrying clothing and
other personal effects during travel, including
backpacks and shopping bags of this heading, but does
not include binocular cases, camera cases, musical
instrument cases, bottle cases and similar containers.
We note that the exemplars cited in the Additional U.S. Note
above specifically enumerate backpacks as an article similar to a
"travel, sports and similar bags" in subheading 4202.92, HTSUSA.
Moreover, we have determined that the appropriate subheading for
goods under this subheading is determined by the constituent
material of the outer surface. Thus, the issue to be addressed
is whether the backpack in the instant case is constructed of
materials with outer surface of "plastic sheeting or of textile
materials" under subheading 4202.92, HTSUSA, or of "other"
material under subheading 4202.99, HTSUSA.
"Plastics and Articles thereof" are classified in Chapter
39, HTSUSA. Legal Note 2(1) to Chapter 39, HTSUSA, states:
2. This chapter does not cover:
(1) Goods of section XI (textile and textile
articles);
The Legal Notes to Section XI which covers textiles provide that:
1. This section does not cover:
(h) Woven, knitted or crocheted fabrics, felt
or nonwovens, impregnated, coated, covered or
laminated with plastics, or articles thereof,
of Chapter 39;
The effect of these provisions in the chapter and section
notes is to place within the scope of Chapter 39 those goods
which are considered plastics, as that Chapter defines them, and
to include those materials regarded as textile materials in
Section XI (including Chapter 59). When articles are composed of
combinations of plastics and textiles, the notes to the
respective chapters define which goods fall within Chapter 39 and
which fall within Chapter 59. The Explanatory Notes, which
constitute the official interpretation of the tariff at the
international level, to Chapter 39, HTSUSA, relating to plastics
and textile combinations provide, in pertinent part:
. . . Otherwise, the classification of plastics and
textile combinations is essentially governed by Note
1(h) to Section XI, Note 3 to Chapter 56 and Note 2 to
Chapter 59. The following products are also covered by
this chapter: . . .
(d) Plates, sheets, and strip of cellular
plastics combined with textile fabrics, felt
or nonwovens, where the textile is present
merely for reinforcing purposes.
Heading 5903, HTSUSA, provides for classification of textile
products impregnated, coated, covered or laminated with plastics,
other than tire cord covered by Heading 5902.
Legal Note 2 of Chapter 59, HTSUSA, provides, in pertinent
part:
Heading No. 59.03 applies to:
(a) Textile fabrics, impregnated, coated, covered or
laminated with plastics; . . . other than:
(1) Fabrics in which the impregnation,
coating or covering cannot be seen with the
naked eye (usually Chapter 50 to 55, 58 or
60); for the purpose of this provision, no
account should be taken of any resulting
change of colour.
The wording of Note 2(a)(1) ("cannot be seen with the naked
eye") is a clear expression by the drafters of the nomenclature
that a significant, if not substantial, amount of material must
be added to a fabric for it to be considered "impregnated,
coated, covered or laminated." The plastics material added to
the fabric must be visibly distinguishable from that fabric
without the use of magnification.
Applying the statutory test to the submitted article, using
normally corrected vision in a well lighted room, it is our
opinion that the backpack meets the visibility requirement of
Note 2, Chapter 59. It is apparent, based on our examination of
the article, that the plastics material added to the textile
fabric alters the visual characteristics of the fabric. Although
we have determined that the instant merchandise has an outer
surface of "plastics," the merchandise is not classified under
the subheading which includes travel, sports and similar bags
with outer surface of plastic sheeting or of textile materials
based on the following analysis.
In the instant case, the outer surface of the goods is
composed of a man-made textile material which has been laminated
with a non-cellular plastic. The plastic material gives the
finished article its smooth finish and appearance. However,
Customs has held in prior rulings that a non-cellular plastics
material which has been laminated to the outer surface of a
textile material is not considered "plastic sheeting" as provided
for in the Explanatory Notes to Chapter 39, supra. In addition,
the outer surface of the backpack does not qualify as a "textile
material" as provided for in subheading 4202.92, HTSUSA, since it
is a textile material that has been laminated with plastic.
Thus, in this case, the backpack is precluded from classification
under subheading 4202.92, HTSUSA, since the outer surface is
neither of plastic sheeting, nor of textile material. In short,
the outer surface of the backpack is comprised of non-cellular
plastics. Accordingly, it is Customs position that the subject
merchandise is properly classifiable under subheading
4202.99.0000, HTSUSA.
HOLDING:
Based on the foregoing analysis, it is the opinion of this
office that the sample backpack is properly classifiable under
subheading 4202.99.0000, HTSUSA, as a travel, sports and similar
bags: Other. The applicable rate of duty is 20 percent ad
valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division