HQ 954825

December 8, 1993

CLA-2 CO:R:C:T 954825 SK

CATEGORY: Classification

TARIFF NO.: 5407.60.2035

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