CLA-2 CO:R:C:T 089568 CRS

District Director
U.S. Customs Service
909 First Avenue
Room 2039
Seattle, WA 98174

RE: Further review of Protest No. 3001-91-100251; fabric not coated for tariff purposes unless coating visible to the naked eye.

Dear Mr. Holland:

This is in reply to your memorandum of May 8, 1991, in which you forwarded Protest No. 3001-91-100251, filed by Gladish & Associates on behalf of UGG International, Inc., concerning the classification of fabric under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Samples were provided.

FACTS:

The merchandise in question consists of two textile fabrics. The first is a "zebra print" woven fabric composed of 95 percent polyamide and 5 percent acrylic plastic, by weight. The second is a solid color woven fabric composed of 92 percent polyamide and 8 percent polyurethane plastic, by weight.

The fabrics were liquidated under the provision for woven fabrics of man-made fibers of heading 5407, HTSUSA. However, protestant contends the instant fabrics should be classified as coated fabrics of heading 5903, HTSUSA.

ISSUE:

The issue presented is whether the fabrics in question are coated for tariff purposes.

LAW AND ANALYSIS:

Heading 5903, HTSUSA, provides for, inter alia, textile fabrics coated with plastics. However, the scope of the heading is restricted by Note 2, Chapter 59, HTSUSA, which provides that coatings must be visible to the naked eye in order for fabrics to be classified in heading 5903.

The coating on the zebra print fabric is indistinguishable from the fabric itself and therefore is not visible to the naked eye as required by Note 2. However, the coating applied to the solid color material is visible in that it has obscured the weave of the fabric. Accordingly, the latter fabric is classifiable in heading 5903.

Heading 5407, HTSUSA, covers woven fabrics of synthetic filament yarn. Since the zebra print fabric is not coated for tariff purposes, it is classifiable according to its constituent material. The fabric is made from a woven filament yarns of 100 percent polyamide, a synthetic textile material pursuant to Note 1, Chapter 54, HTSUSA. Consequently, the zebra print fabric is classifiable in heading 5407, HTSUSA.

HOLDING:

The zebra print fabric is classifiable in subheading 5407.44.0030, HTSUSA, under the provision for woven fabrics of synthetic filament yarn...; other woven fabrics, containing 85 percent or more by weight of filaments of nylon or other polyamides; printed; weighing not more than 170 g/m. It is dutiable at the rate of 17 percent ad valorem and is subject to textile quota category 620.

The solid color fabric is classifiable in subheading 5903.20.2500, HTSUSA, under the provision for textile fabrics impregnated, coated, covered or laminated with plastics...; with polyurethane; of man-made fibers; other; other. The fabric is dutiable at the rate of 8.5 percent ad valorem and is subject to textile quota category 229.

You are instructed to deny the protest, except to the extent reclassification of the merchandise as indicated above results in a net duty reduction and partial allowance. A copy of this decision should be attached to the Form 19 Notice of Action.

Sincerely,

John Durant, Director
Commercial Rulings Division