HQ 951041

June 16, 1992

CLA-2 CO:R:C:T 951041 CRS

CATEGORY: Classification

TARIFF NO.: 5603.00.9090

District Director

U.S. Customs Service

Thomas P. O\'Neill, Jr. Federal Building

10 Causeway Street, Room 221

Boston, MA 02222-1052

RE: Further review of Protest No. 0401-91-100526; nonwovens;

plastics; coagulation coating; General Explanatory Note, Chapter

39; EN 56.03; Note 3(b), 3(c), Chapter 56.

Dear Sir:

This is in response to your memorandum of December 24, 1991,

forwarding an application for further review of Protest No. 0401-

91-100526 dated August 8, 1991, and filed on behalf of protestant

Bradford Industries, Inc., by the law firm of Lamb & Lerch. AN

additional submission was made in a letter to Headquarters dated

May 4, 1992. Our decision follows below.

FACTS:

The merchandise in question consists of a nylon nonwoven

substrate that has been coated with polyurethane plastics in a

coagulation type process. The fabric is composed by weight of 81

percent polyurethane and 19 percent nonwoven polyester, and is

marketed under the name \"Temasoft.\"

\"Temasoft\" is an imitation leather product manufactured in

Italy and used in the footwear industry in the construction of

linings and uppers. \"Temasoft\" is imported through the port of

Boston, Massachusetts.

Protestant disputes the decision to classify the merchandise

at issue in subheading 5603.00.9090, Harmonized Tariff Schedule

of the United States Annotated (HTSUSA), and contends that it is

classifiable in subheading 3921.13.1500, HTSUSA, under a residual

provision covering, inter alia, sheets of plastics: cellular: of

polyurethane: combined with textile materials: products with

textile components in which man-made fibers predominate by weight

over any other single textile fiber: other.

ISSUE:

The issue presented is whether the protested merchandise is

properly classifiable as a plate or sheet of plastics, or as a

nonwoven.

LAW AND ANALYSIS:

Two headings are relevant for the purposes of this ruling:

heading 3921, HTSUSA, which provides for other plates, sheets,

film, foil and strip of plastics; and heading 5603, HTSUSA, which

provides for nonwovens, whether or not impregnated, coated,

covered or laminated.

Counsel for protestant contends the instant merchandise is

classifiable in heading 3921, HTSUSA. This position is based on

the view that the merchandise at issue is covered by the terms of

heading 3921; that heading 3921 is the more specific heading

under General Rule of Interpretation (GRI) 3(a); that the product

in question has the essential character of plastics rather than

of textiles; that nonwovens coated with plastics are classifiable

in heading 5603 only if they derive their essential character

from the nonwoven; and that classification in heading 3921 is

supported by prior rulings.

The classification of plastics and textile combinations is

discussed in the Explanatory Notes (EN) to the Harmonized

Commodity Description and Coding System, which although not

legally binding, constitute the official interpretation of the

Harmonized System at the international level. The EN provide in

relevant part that:

\[T\]he classification of plastics and textile

combinations is essentially governed by\...Note 3 to

Chapter 56 \[nonwovens\]\....The following products are

also covered by this Chapter:

\* \* \*

\(b\) Textile fabrics and nonwovens, either completely

embedded in plastics or entirely coated or covered

on both sides with such material, providing that

such coating or covering can be seen with the

naked eye with no account being taken with any

resulting change in color\....

\(d\) Plates, sheets, and strip of cellular plastics

combined with textile fabrics, felt or nonwovens,

where the textile is present merely for

reinforcing purposes.

General Explanatory Note (EN/AS 4 - February 1989), Chapter 39,

554\. Subnotes (b) and (c) supra restate verbatim the language of

Note 3(b) and (c), Chapter 56, HTSUSA. Accordingly, the instant

merchandise is classifiable in heading 3921 if: (1) the nonwoven

textile portion is completely embedded in plastics; (2) the

nonwoven is visibly coated on both sides with plastics; or (3)

the product consists of a sheet of plastics combined with

textiles in such a manner that the textile component acts merely

as reinforcement.

The merchandise at issue is an imitation leather product

made from a nonwoven substrate visibly coated on one side with

plastics by means of a coagulation process. We have been advised

by the National Import Specialist responsible for this line of

merchandise that in a coagulation coating, plastics material is

applied to a textile substrate in a fluid, or \"uncured\" state.

Thus while the textile portion of the instant merchandise is

coated with plastics, it has not been combined with a plate or

sheet of plastics. Instead plastics is applied in a liquid state

and cured to form the external surface of the fabric. Customs

therefore does not consider the product in question to be a

plate, sheet, etc., of heading 3921.

Furthermore, the instant merchandise is visibly coated with

plastics on only surface. Note 3(b), Chapter 56, HTSUSA, and the

General Explanatory Note, Chapter 39, state that nonwovens are

classifiable in Chapter 39 only of they are entirely coated on

both sides with plastics material that is visible to the naked

eye.

Heading 5603 covers nonwovens, whether coated, covered or

impregnated with plastics, whatever the nature off the plastics

material. The instant merchandise consists of a nonwoven fabric

coated with plastics. It is not excluded from heading 5603 by

Note 3(b), Chapter 56, since it is visibly coated with plastics

on only one side. Similarly, Note 3(c), Chapter 56, which

provides that plates or strips of cellular plastics combined with

nonwovens where the textile material is present merely for

reinforcing purposes, does not exclude the protested merchandise

from heading 5603. In this regard EN 56.03 provides that:

Those \[nonwovens\] covered on one or both surfaces (by

gumming, sewing or by any other process) with textile

fabric or with sheets of any other material are

classified in \[heading 5603\] only if they derive their

essential character from the nonwoven.

EN 56.03, EN/AS 3, July 1988, 775. The instant merchandise is

coated with plastics in a coagulation process. It is not

combined with other materials, e.g., by gumming or sewing, as

envisaged by EN 56.03. Consequently, in Customs\' opinion the

protested merchandise is properly classifiable in heading 5603.

Nevertheless, in support of his client\'s position, counsel

for protestant cites Headquarters Ruling Letter (HRL) 081489 of

March 27, 1989, wherein certain imitation leather products,

including a nonwoven, were classified in heading 3921. However,

the merchandise of HRL 081489 is distinguishable from that now at

issue. Some articles were coated on both sides with plastics

that was visible to the naked eye; others consisted of a sheet of

cellular plastic laminated to a textile backing where the backing

acted merely as reinforcement. Given that these products were

coated with plastics on both sides or consisted of sheets of

plastics laminated to textile material, they were properly

classifiable in heading 3921.

Since the instant nonwoven is not classifiable in heading

3921, neither the question of specificity under GRI 3(a), nor the

question of essential character under GRI 3(b) arises with regard

to this product.

HOLDING:

The merchandise in question is classifiable in subheading

5603.00.9090, HTSUSA, under the provision for nonwovens, whether

or not impregnated, coated, covered or laminated: other: other:

other nonwovens, whether or not impregnated, coated or covered:

other: of staple fibers. It is dutiable at the rate of 12.5

percent ad valorem and is subject to textile category 223.

You are instructed to deny the protest in full. A copy of

this decision should be attached to the Form 19 Notice of Action.

Sincerely,

John Durant, Director