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HQ 953672

August 16, 1993

CLA-2 CO:R:C:M 953672 RFA


TARIFF NO.: 8516.79.00, 6307.90.99, 5513.21.00

Mr. Paul Wegener
M.G. Maher & Company, Inc.
One Canal Place
Suite 2100
New Orleans, LA 70130

RE: Match-a-Patch hole and tear mender; electro-thermic device; circular and rectangular cut fabric patches; sets put up for retail sale; GRI 3(b); essential character; ENs VIII and X to GRI 3(b); Section XI, Note 7; Chapter 59, Note 2(a); Heading 5903; HQ's 082644, 089568, 950472; Chapter 55, Statistical Note 1(b) and 1(c)

Dear Mr. Wegener:

This is in response to your letter dated March 24, 1993, on behalf of Singer Sewing, concerning the tariff classification of the Match-a-Patch hole and tear mender under the Harmonized Tariff Schedule of the United States (HTSUS).


The merchandise, labeled as the Singer Match-a-Patch hole and tear mender, model MAP100X, contains an electro-thermic device ("Match-a-Patch") and various fabric patches. The fabric patches are woven and made from 60 percent polyester and 40 percent cotton. It has a polyvinylchloride coating applied to one side and weighs less than 170 grams per square meter. The patches are made from bolts of U.S.-made fabric which are sent to China to be cut into rectangular and circular patches.

The user selects a patch of the correct size and color, and clamps it onto the item to be mended. The pre-heated Match-a- Patch is placed over the patch which is then heat sealed onto the item. The merchandise is designed for use in the home rather than in a commercial or industrial setting.


Is the Match-a-Patch hole and tear mender classifiable as a set put up for retail sale under the HTSUS?

Are the fabric patches imported with the electro-thermic device subject to any quota or visa requirements?


Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.

According to the information furnished, the merchandise is designed for household or domestic use to repair or mend fabric items. Based upon the principles of GRI 1, we find that the electro-thermic device is provided for in subheading 8516.79.00, HTSUS, as other electro-thermic appliances used for domestic purposes. However, the Match-a-Patch is considered part of a set which includes the circular and rectangular fabric patches. Each item in the set is prima facie classifiable within two or more headings. The fabric patches are provided for in either headings 6307, 5903, and 5513, HTSUS.

GRI 3(a) states that if a product is classifiable in two or more headings by application of GRI 2(b), or for any other reason, then the
heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to . . . part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.

GRI 3(b) provides that "goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character."

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the Customs Cooperation Council's official interpretation of the HTSUS. While not legally binding, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. To determine what is a "set put up for retail sale", EN X to GRI 3(b), page 4, states

[f]or the purposes of this Rule, the term "goods put up in sets for retail sale" shall be taken to mean goods which:

(a) consist of at least two different articles which are, prima facie, classifiable in different headings;

(b) consist of products or articles put up together to meet a particular need or carry out a specific activity; and

(c) are put up in a manner suitable for sale directly to users without repacking (e.g., in boxes or cases or on boards).

The subject merchandise is a set, because: the items in it are provided for in headings 8516, 6307, 5903, and 5513, HTSUS; all of the products put together carry out the specific activity of mending or patching a hole in fabric; and it is packaged in one box to be sold directly to the user.

Because the item is a set, we must determine which component provides the essential character. Based upon examination, it is clear that the essential character of the set is imparted by the Match-a-Patch due to its size, weight and value in comparison to the other components of the set. Therefore, we find that the set is classifiable within subheading 8516.79.00, HTSUS.

When there are components to a set which would not have been classified under subheading 8516.79.0000, HTSUS, if they had been classified individually (i.e., the fabric components), any quota/visa categories applicable to these components will apply. In an amendment to a directive issued by the Committee for the Implementation of Textile Agreements (CITA) it was stated that, effective August 24, 1989, the directive of December 23, 1988, is amended to read as follows:

Under the terms of Section 204 of the Agricultural Act of 1956, as amended (7 U.S.C. 1854); and in accordance with the provisions of Executive Order 11651 of March 3, 1972, as amended; all applicable visa and quota requirements will apply for textiles and their products which are classified as part of a set. This rule applies to all items which, if imported separately, would have required a visa and the reporting of visa.

After reviewing the information provided, we find that the bolts of U.S.-made fabric that are sent to China for cutting have been advanced in value for purposes of conferring country of origin status. The fabric patches are therefore considered products of China.

We find that the proper classification for the circular cut patches is subheading 6307.90.9986, HTSUS, which provides for "other made up articles." Goods classified in this subheading are not subject to visa requirements.

The 2 inch by 4 inch rectangular patches are not classifiable as other made up articles under heading 6307, HTSUS, because Section Note 7 to Section XI, HTSUS, states that for purposes of classification within this Section the expression "made up" means cut otherwise than into squares and rectangles. Accordingly, the rectangular patches are classifiable as fabric. The threshold issue is whether the fabric is deemed coated for purposes of classification within chapter 59, HTSUS.

You indicate that the fabric is woven and is made from 60 percent polyester and 40 percent cotton. It has a polyvinylchloride coating applied to one side and weighs less than 170 grams per square meter. Because the fabric has a plastic coating, it must be determined whether the coating is deemed "visible to the naked eye" as mandated by Note 2(a) to Chapter 59. Note 2(a)(1) to Chapter 59 states as follows:

Heading 5903 applies to: [t]extile fabrics impregnated, coated, covered or laminated with plastics, whatever the weight per square meter and whatever the nature of the plastic material . . ., other than: [f]abrics in which the impregnation, coating or covering cannot be seen with the naked eye . . .; . . . no account is to be taken of any resulting change in color. (emphasis added)

The sole criterion upon which Customs is to determine whether fabric is coated for purposes of classification under heading 5903, HTSUS, is clear and unambiguous: 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 lend a sheen to fabric, 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 HQ 082644, dated March 2, 1990.

Customs has consistently held that, for the purposes of Chapter Note 2(a)(1) to Chapter 59, 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. See HQ 089568, dated August 16, 1991. On the other hand, even when there is a distinguishable difference between the coated and uncoated portions of a fabric, it does not conclusively prove that the coated portion is "visible" as per Chapter Note 2(a)(1) to Chapter 59.

In order to make this determination, Customs also takes into account whether there is a "distinctive difference in texture and physical characteristics" between the base fabric and the coated fabric. In HQ 950472, dated October 21, 1991, 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. Because the plastic coating is not visible to the naked eye, we find that this fabric is precluded from classification as a coated fabric under heading 5903, HTSUS.

The rectangular patches are woven, contain less than 85 percent synthetic staple fibers (polyester), weigh less than 170 grams per square meter, and are dyed. Accordingly, classification is proper under subheading 5513.21, HTSUS. We were not informed whether the fabric at issue is sheeting or printcloth. If it is the former, classification is proper under subheading 5513.21.0040, HTSUS, with an attendant textile quota/visa category of 613. If the fabric is printcloth, it is classifiable under subheading 5513.21.0060, HTSUS, with a textile quota/visa category of 615. The prerequisites for classification as sheeting or printcloth are set forth in Statistical Note 1(b) and (c) to Chapter 55, and depend on the yarn count of the submitted samples.


The Match-a-Patch hole and tear mender set is classifiable under subheading 8516.79.00, HTSUS, which provides for other electro-thermic appliances of a kind used for domestic purposes. The general, column one rate of duty is 5.3 percent ad valorem.

The circular cut patches are classifiable under subheading 6307.90.99, HTSUS, which provides for other made up articles. The general, column one rate of duty is 7 percent ad valorem.

If the rectangular patches are sheeting, classification is proper under subheading 5513.21.0040, HTSUS, with an attendant textile quota/visa category of 613. If it is printcloth, it is classifiable under subheading 5513.21.0060, HTSUS, with a textile quota/visa category of 615.

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 negotiations and changes, to obtain the most current information available, we suggest that your client check, close to the time of shipment, the Status Report on Current Import Quotas (Restraint Levels), an issuance of the U.S. Customs Service, which is updated weekly and is available at the 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, your client should contact the local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.


John Durant, Director
Commercial Rulings Division

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