HQ 951040: Further review of Protest No. 0401-91-100525; nonwovens;plastics; coagulation coating; General Explanatory Note, Chapter39; EN 56.03; Note 3(b), 3(c), Chapter 56.

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 951040

                          June 16, 1992



CLA-2 CO:R:C:T 951040 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. 0401-91-100525; 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-
91-100525 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 56
percent polyurethane, 26 percent nylon and 18 percent NBR binder,
and is marketed under the name "Barcelona."

     "Barcelona" is an imitation leather product manufactured in
Spain and used in the footwear industry in the construction of
linings and uppers.  "Barcelona" 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 that 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 an 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 colour....

     (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 Notes 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 is not combined with a plate or sheet of
plastics.  Instead plastics material is applied in a liquid form
and cured to create 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 one surface.  Note 3(b), Chapter 56, HTSUSA, and
the General Explanatory Note, Chapter 39, state that nonwovens
are classifiable in Chapter 39 only if 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 of 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 sheets 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 a 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
plastics 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 merchandise is not classifiable in heading
3921, neither the question of specificity under GRI 3(a), nor
that of essential character under GRI 3(b), arise with respect 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