HQ 961172

August 6, 1998

CLA‑2 RR:CR:TE 961172 ASM

CATEGORY: Classification

Tariff No.: 5903.20.2500, 5903.90.2500.

Port Director

U.S. Customs Service

Chicago, Illinois 60607

RE: Tariff Classification of Balloon Cloth Fabric

Protest for Further Review No. 3901‑97‑100919

Dear Port Director:

This letter concerns the above‑captioned Protest for Further Review
regarding the tariff classification of balloon cloth fabric under the
Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The subject article concerns the classification of a number of shipments
of woven nylon fabric that is used in the manufacture of hot air
balloons. The goods were entered under subheadings 5903.20, HTSUSA, as
textile fabric coated with polyurathane plastic or subheading 3921.90 as
textile material completely encased in plastic.

The port of Chicago returned the goods with a rate advance, under
subheading 5407.42, HTSUSA, as woven synthetic fabrics of nylon filament
yarn. A protest was filed by the importer which listed four styles as
follows: N1053 (ripstop ‑blue); N2372 (ripstop ‑white); N2369 (plain
‑blue); N1084 (ripstop ‑green/yellow).

The protestant claims that styles N1053, N2372, and N1084 are coated on
one surface with polyurathane plastic (PU), while the fourth style,
N2369 is coated on both sides with a silicone elastomer. It is stated
that all of these woven fabrics are of 100% high tenacity nylon 6.6,
either in ripstop or plain weave. In addition, it is claimed that the
coating substances are clear for three of the styles with the exception
of style N2372, where the coating has been pigmented white with Titanium
Dioxide. It is also noted that the PU coated materials have been
fluorocarbon proofed.

ISSUE:

Whether the subject balloon fabric is properly classifiable under
headings 5903 and 3921, HTSUSA, as \"coated fabric\" or \"sheets or film
of plastic combined with textile material\" within the meaning of Note
2(a)(1) and (3)to Chapter 59, HTSUSA, or is the fabric properly
classified under heading 5407, HTSUSA, as \"woven fabrics of synthetic
filament yarn.\"

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. Merchandise that cannot be classified in
accordance with GRI 1 is to be classified in accordance with subsequent
GRI's taken in order. The Explanatory Notes to the Harmonized Commodity
Description and Coding System (ENs), which represent the official
interpretation of the tariff at the international level, facilitate
classification under the HTSUSA by offering guidance in understanding
the scope of the headings and GRIs.

Chapter 59, HTSUSA, provides for \"impregnated, coated, covered or
laminated textile fabrics; textile articles of a kind suitable for
industrial use.\" Specifically, Note 2(a) to Ch. 59 states in relevant
part:

2\. 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 \...

\* \* \* \* \*

\(3\) Products in which the textile fabric is either completely

embedded in plastics or entirely coated or covered on

both sides with such material, provided that such coating

or covering can be seen with the naked eye with no account

being taken of any resulting change of color (chapter 39).

In order for styles N1053, N2372, N1084 to be classified in heading
5903, HTSUSA, the coating must be visible to the naked eye. Styles N1053
and N1084 have been coated with a clear substance. However, we note that
like Headquarters Ruling (HQ) 955429, dated December 7, 1993, the
fabric's interstices have been filled with a PU coating. When held up to
a source of light, the interstices in the uncoated samples permit light
to shine through while the coated sample leaves no visible gaps in the
weave of the fabric. This condition was previously held by Customs to be
visible evidence of coating. *See* HQ 950022, dated September 26, 1991.
Sample N2372 has a PU coating which has been pigmented white. Thus, the
coating is clearly visible to the naked eye and meets the definition of
Note 2(a), Ch. 59, HTSUSA.

To qualify for heading 3921, the textile material must be entirely
covered on both sides or completely encased in plastic. Note 2 to
Chapter 59, HTSUSA, which provides for impregnated, coated, covered, or
laminated textile fabrics, applies to:

\(a\) Textile fabrics, impregnated, coated, covered, or laminated with

plastics, \...other than:

\(3\) Products in which the textile fabric is either completely

embedded in plastics or entirely coated or covered on

both sides with such material, provided that such coating

or covering can be seen with the naked eye with no account

being taken of any resulting change of color (chapter 39).

The protestant has claimed that Style N2369 has received a clear
silicone elastomer coating on both sides of the fabric. However, this
balloon cloth fabric was analyzed by the Customs laboratory and the
report indicates that the silicone plastic is only present on one
surface and only comprises 1% of the weight of the material, not the
16.5% as claimed by the manufacture. As such, this balloon fabric is not
classifiable in Chapter 39. In this instance, HQ 955429 is applicable to
balloon cloth fabric because we find that light filters through the
uncoated sample while the coated sample is darker in color and more
opaque. Style N2369 is also classifiable in Ch. 59.

It should also be noted that according to Customs laboratory report,
with regard to Style N1053, it was determined that the yarns do not meet
the criterion for high tenacity nylon as defined by the HTSUSA.

HOLDING:

The subject balloon cloth fabrics in Styles N1053, N3272, and N1084 are
classifiable under the provision for \"Textile fabrics impregnated,
coated, covered or laminated with plastics, other than those of heading
5902: With polyurethane: Of man-made fibers: Other: Other,\" in
subheading 5903.20.2500, HTSUSA. The balloon cloth fabric in Style N2369
is classifiable in subheading 5903.90.2500, HTSUSA, as \"Textile fabrics
impregnated, coated, covered or laminated with plastics, other than
those of heading 5902: Other: Other: Other.\" Both provisions are
dutiable at 8.1 percent *ad valorem* under the general column one rate
and the textile restraint category for each provision is 229.

Since reclassification of the merchandise as indicated above will result
in a refund to the Protestant, you are instructed to allow the protest
in full. A copy of this decision should be attached to the Form 19
Notice of Action.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550‑065,
dated August 4, 1993, Subject: Revised Protest Directive, this decision
should be mailed by your office to the Protestant no later than 60 days
from the date of this letter. Any reliquidation of the entry in
accordance with the decision must be accomplished prior to mailing the
decision. Sixty days from the date of the decision the Office of
Regulations and Rulings will take steps to make the decision available
to Customs personnel via the Diskette Subscription service, Freedom of
Information Act and other public access channels.

Sincerely,

John Durant, Director

Commercial Rulings Division