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HQ 086891


May 7, 1990

CLA-2 CO:R:C:G 086891 CRS

CATEGORY: CLASSIFICATION

TARIFF NO.: 5903.90.2500

Stephen M. Zelman, Esq.
Attorney at Law
271 Madison Avenue
New York, NY 10016

RE: Knit fabric with spattering of thermoplastic resin, where dots of resin are visible to the naked eye, is considered coated with plastics under Note 2, Chapter 59.

Dear Mr. Zelman:

This is in reply to your letter dated February 22, 1990, to our New York office, on behalf of your client, Samuel Haber's Sons, concerning the tariff classification of fusible interlining fabrics imported from France. Fabric samples were submitted with your ruling request.

FACTS:

The merchandise in question consists of four styles of weft inserted man-made fibers fusible interlining fabrics, as follows: style F7493, color 47 (grey), of 50 polyester, 28 percent cotton, 22 percent rayon; style F1403, color 47 (grey), of 70 percent rayon, 30 percent polyester; style F7633, color 431 (grey), of 100 percent polyester; and style F2748, color 43 (grey), of 100 percent nylon. It is anticipated that the merchandise will be imported through New York Seaport.

The fabrics are used as interlining, primarily on wearing apparel, and due to the presence of the thermoplastic resin, are capable of providing a bond to other fabrics or materials on the application of heat and pressure.

ISSUE:

Whether fabrics sprayed with dots of thermoplastic resin are coated such that they are classifiable in heading 5903, HTSUSA.

LAW AND ANALYSIS:

Heading 5903, HTSUSA, covers textile fabrics impregnated, coated, covered or laminated with plastics. In order for a fabric to be considered coated within the meaning of heading 5903, Note 2(a)(1), Chapter 59, provides that whatever the nature of the plastic material, the coating must be visible to the naked eye.

The Explanatory Notes, which constitute the official interpretation of the Harmonized System at the international level (four and six digits), provide in pertinent part at EN 59.03 that the coated fabrics of heading 5903 include:
textile fabrics which are spattered by spraying with visible particles of thermoplastic material and are capable of providing a bond to other fabrics or materials on the application of heat and pressure.

The thermoplastic coatings applied to the fabrics in question are in all cases visible to the naked eye. The coatings applied to styles F1403 and F7493 resemble small crystalline particles, roughly akin to salt crystals, and are readily apparent. In contrast, the thermoplastic dots of styles F7633 and F2748 are slightly harder to distinguish.

Since it can be difficult using only the naked eye to determine that what the eye perceives is indeed an impregnation, coating, covering or lamination, Customs has ruled that the naked eye test can be augmented by the use of magnification in certain circumstances. Thus in a memorandum dated March 14, 1988, we ruled that magnification is allowable as an aid in determining whether what could be seen on the surface of a fabric was a coating or merely the textile itself.

Nevertheless, before using magnification, it is Customs' practice to examine textile fabrics with the naked eye alone in order to ascertain if a coating is present. If nothing resembling a coating is observed, the fabric will not be considered coated for classification purposes; but, if a visual examination suggests the presence of a coating, Customs may examine the fabric under magnification to confirm or refute the initial observation.

With regard to styles F7633 and F2748, however, it is unnecessary to resort to magnification since the thermoplastic coatings, while faint, are just visible to the naked eye either as crystalline particles or as specks of matter. A coating therefore need not be readily or easily visible for the purposes of Note 2(a), Chapter 59, HTSUSA. Although Customs is of the opinion that magnification is unnecessary in this case, its use here supports the initial observation that a coating is present.

HOLDING:

The four fabrics at issue are classifiable in subheading 5903.90.2500, HTSUSA, under the provision for textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902, other, of man-made fibers, other, other, and are dutiable at 8.5 percent ad valorem. The textile category is 229.

The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available, we suggest that you check, close to the time of shipment, the Status Report on Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service, which is available for inspection at your local Customs office.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,


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