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NY 853216

July 6, 1990

CLA-2-55:S:N:N3H:350 853216


TARIFF NO.: 5513.21.0020

Ms. Margaret R. Polito
Coudert Brothers
200 Park Avenue
New York, N.Y. 10166

RE: The tariff classification of a woven polyester cotton fabric treated with ZEPEL, a water and stain resistant substance, from Korea.

Dear Ms. Polito:

In your letter dated June 4, 1990, on behalf of E.I. Du Pont de Nemours & Co., you requested a tariff classification ruling.

You submitted two samples, one treated with ZEPEL and the other, of the same material, finished, but before being treated with ZEPEL. The base fabric was produced and treated in Korea by Taihan Textile Company, who is licensed by Du Pont to produce ZEPEL-treated fabric. The material, commercially known as T9083, is composed of 65% staple polyester and 35% cotton fibers. You further state that the yarn size of the fabric is 45S/1, both in the warp and filling, and with a yarn tenacity of 8.1%. The number of turns of the yarn is 872/m. The yarn has been combed prior to weaving.

You further indicate that the fabric has been bleached, dyed, mercantized, treated with ZEPEL, and downproof finished. The number of single yarns per centimeter is: warp - 54.33, filling (weft) - 35.83. The width of the fabric is 113 cm and the weight of the fabric, prior to treatment with ZEPEL, is 126.94g (we assume this is per square meter). The weight of the fabric after treatment with ZEPEL is 129.47g (a difference of 2.53 grams per square meter). The nature of the downproof finish is not given. You note that different fabrics will absorb different quantities of ZEPEL. ZEPEL impregnates the fabric binding itself to the individual fibers, which has the effect of repeling water, oily, and greasy substances. ZEPEL-treated fabric is produced by completely immersing the fabric into a bath of liquid ZEPEL, then through a series of rollers to remove the excess liquid. The fabric is then cured by heating, but the heating process merely drys the fabric.
You request that this and such treated fabrics be classified under heading 5903.90.2500, HTS, which provides for textile fabrics impregnated, coated, covered or laminated with plastics, of man-made fibers, other. Your point being that ZEPEL is a plastics substance and that it is visible to the naked eye after it has been applied to the subject fabric.

The chemical formula for ZEPEL is furnished, however, you do indicate that Du Pont requests confidential treatment for this portion of the ruling request, which presents no problem for Customs. It is sufficient to say, for this ruling, that Du Pont claims that major portions of this compound are plastics as provided for in chapter 39 of the HTS. The furnished advertising literature refers to fluoropolymers.

For a fabric to be classified under heading 5903, the applied plastics substance must, in itself, be visible to the naked eye, as you correctly cite in chapter 59, note 2 (a)(1). You mention, at length, ZEPEL's effects on the treated fabric, such as sheen, fluids rolling off the surface and give the analogy of a change of color in litmus paper when exposed to acidic or alkaline solutions, as an example of this effect. Also mentioned are Customs Rulings 084822 (July 14, 1989) and 085245 (August 31, 1989) in which the subject fabrics, coated with clear polyurethane, were classified under heading 5903. You further cite ruling 082644 (May 2, 1990), which mentioned the use of magnification to determine whether the plastic was visible to the naked eye.

The question remains whether the ZEPEL compound, if considered a plastic substance, when applied to the subject fabric is visible to the naked eye such that the fabric is classifiable in heading 5903 HTS.

The ZEPEL is not visible to the naked eye. We also quote from this same advertising literature "...ZEPEL... rain and stain repeller is an invisible finish." Further, we refer to page 816 of the Explanatory Notes covering heading 59.03. Note (1) discusses textile fabrics in which the impregnation, coating or covering cannot be seen with the naked eye. "Examples of such fabrics are those impregnated with substances designed solely to render them crease-proof, moth-proof, unshrinkable or waterproof (e.g. waterproof gabardines and poplins)." This appears to be a carry over of the decision in Kaplan Products & Textiles, Inc. v. United States, C.D. 4425, holding that a water-repellent finish applied to a cotton suede fabric was not visible to the naked eye. The subject material of this request is not considered classifiable under heading 5903.

The applicable subheading for the ZEPEL treated fabric will be 5513.21.0020, Harmonized Tariff Schedule of the United States (HTS), which provides for woven fabrics of synthetic staple fibers, containing less than 85 percent by weight of such fibers, mixed mainly or solely with cotton, of a weight not exceeding 170 g/m2, dyed, of polyester staple fibers, plain weave, poplin or broadcloth. The rate of duty will be 17 percent ad valorem.

This ZEPEL treated fabric, T9083, falls within textile category designation 614. Based upon international textile trade agreements, products of Korea are subject to a textile visa and quota restraints.

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.

This ruling is being issued under the provisions of Section 177 of the Customs Regulations (19 C.F.R. 177).

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is imported. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.


Jean F. Maguire
Area Director

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