CLA-2 CO:R:C:T 953407 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.
1803-93-10001; classification of "coated fabric"; visible to the
naked eye prerequisite of Chapter Note 2(a)(1) to Chapter 59;
subheading 5407.44.0030, HTSUSA.
Dear Madam:
This is a decision on application for further review of a
protest timely filed on behalf of American Tourister, on February
2, 1993, against your decision regarding the classification of
coated fabric. The subject merchandise was entered at the port
of Jacksonville on January 7, 1992, June 16, 1992 and July 3,
1992. The first two entries were liquidated October 1, 1992.
The July 3 entry was liquidated on September 28, 1992.
FACTS:
The merchandise at issue is 200 D woven nylon printed fabric
coated with polyurethane and produced in Taiwan. The weight of
the woven nylon material is 104.88 grams per square meter. The
sample submitted to this office was taken from an entry not the
subject of this protest, but nevertheless identical to the fabric
under review.
Protestant believes that this merchandise was properly
entered 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 this
subheading applies provided that 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 5407.44.0030, 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.
The merchandise at issue is currently the subject of demand
for redelivery. Counsel for American Tourister has stated that
the goods have already left the warehouse and have entered the
stream of commerce.
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 clear and unambiguous: 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 lend a sheen to fabric, 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
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examination there is the suggestion of the presence of plastic
coating, it is then within Customs' discretion to examine the
fabric under magnification. See 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 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 see 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 in appearance between 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.
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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 subheading 5407.44.0030, HTSUSA.
HOLDING:
The merchandise at issue is classifiable under subheading
5407.44.0030, 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 filaments of nylon or other
polyamides: printed... weighing not 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