CLA-2 RR:CR:TE 965343 ttd
Ms. Marion Sitton
D.J. Powers Co., Inc.
1809 E. Associates Lane
Charlotte, NC 28217
Dear Ms. Sitton:
This is in reference to your letter of December 3, 2001, on behalf of Rockland Industries, requesting reconsideration of New York Ruing Letter (NY) H81427, dated August 15, 2001, regarding the classification of woven textile blackout drapery lining material under the Harmonized Tariff System of the United States Annotated (HTSUSA). Your letter, which was originally submitted to the Customs National Commodity Specialist Division in New York, was referred to this office for reply. After review of NY H81427, Customs has determined that the classification of the blackout drapery lining material in subheading 5903.90.2500, HTSUSA, was correct. For the reasons that follow, this ruling affirms NY H81427.
FACTS:
On May 30, 2001, you submitted two samples, identified as Blackout and Budget Blackout, to the National Commodity Specialist Division (NCSD) in New York and requested a classification ruling, on behalf of Rockland Industries. In New York ruling letter (NY) H81427, dated August 15, 2001, both samples were classified in subheading 5903.90.2500, under the Harmonized Tariff Schedule of the United States (HTSUS). Subheading 5903.90.2500 provides for textile fabrics impregnated, coated covered or laminated, with plastics, . . . of man-made fibers, not over 70 percent by weight of rubber or plastics.
In NY H81427, the merchandise was described as follows:
Two representative samples were submitted (white in color) differing mainly in their respective weights (thicknesses [sic]). The product Roc-lon®, is described in the literature as "Blackout" 3-pass and "Budget Blackout" 2-pass and identified on the samples as Textralon B/O F/R, and Budget B/O F/R, respectively. You described them in your correspondence as being of a "base cloth of 70% polyester/30% cotton construction and having a rubber like backing on the back with an acrylic coating and 100% cotton flocking.
These drapery materials are available in a variety of colors and will be imported as roll goods having 54" (137 cm) widths. You indicate that similar materials are also available in 48" (122 cm) 54" (137 cm) and 110" (280 cm) widths. These materials, being used as drapery materials, according to your documentation, have the advantages of better light control, improved acoustical properties, holds up better after dry cleaning than other materials and resists cracking and peeling, etc.
It was noted, from observation, that there was a black colored layer between the textile surface or layer and white layer on the other surface. Your letter made mention of a "rubber like" backing and cotton flocking, neither of were apparent from the samples, thus the reason for sending the samples to the lab.
The New York Customs laboratory analyzed the two samples and found them to be constructed of woven base fabrics composed predominately of polyester man-made fibers. The samples are coated on one side with an acrylic polymer, both the white and black layers, which is a plastics material. The laboratory found trace of cotton flock on the outer plastic surfaces. However, the flock is not visible to the naked eye. In neither instance, does the plastics coating appear to be over 70 percent by weight of the total weight of either material.
In your letter, you submitted "supportive documentation" claiming that plastic was not used in manufacturing the drapery material. You included a letter from Rockland Industries, Inc., dated July 20, 1998, which described the material under consideration as a "self-crosslinking acrylic emulsion for textile applications."
We note that at the time NY H81427 was issued, Customs presumed, absent any information to the contrary, that the subject merchandise was to be imported into the United States. After NYRL H81427 was issued, the Customs Service was informed that the material is for export and not import purposes.
LAW AND ANALYSIS:
Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides, in part, that classification decisions are to be “determined according to the terms of the headings and any relative section or chapter notes….” In the event that goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied.
The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. While neither legally binding nor dispositive of classification issues, the EN provide commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).
Proper classification of the subject merchandise rests on whether the coating on the woven fabric is considered a plastic. Chapter 39, HTSUSA, covers plastics and articles thereof. Note 1 to chapter 39 states:
1. Throughout the tariff schedule the expression "plastics" means those materials of heading 3901 to 3914 which are or have been capable, either at the moment of polymerization or at some subsequent stage, of being formed under external influence (usually heat and pressure, if necessary with a solvent or plasticizer) by molding, casting, extruding, rolling or other process into shapes which are retained on the removal of the external influence.
Within Chapter 39, heading 3906 provides for "Acrylic polymers in primary forms." Note 6 to Chapter 39 further provides that in headings 3901 to 3914, the expression "primary forms" applies to the following forms:
(a) Liquids and pastes, including dispersions (emulsions and suspensions) and solutions;
(b) Blocks of irregular shape, lumps, powders (including molding powders), granules, flakes and similar bulk forms.
After analyzing the two samples at issue, the New York Customs laboratory found each to be constructed of woven base fabrics composed predominately of polyester man-made fibers. The laboratory also found that the samples are coated on one side with an acrylic polymer, which is considered a plastics material. As an acrylic polymer, the subject material that coats the fabric is specifically named in heading 3906, HTSUSA. Moreover, acrylic polymer emulsions are properly considered to be "primary forms" as defined by Note 6(a) to chapter 39 above. Therefore, when classified on its own, absent the woven base fabrics, the acrylic polymer falls squarely within the scope of heading 3906, HTSUSA, which provides for "Acrylic polymers in primary forms." See Headquarters Ruling Letter (HQ) 964704, dated April 11, 2001, wherein Customs classified an acrylic polymer in subheading 3906, HTSUSA, as an acrylic polymer in primary forms.
As the subject acrylic polymer emulsion is properly considered a plastics material, we must next determine the proper classification of the acrylic polymer emulsion combined with the woven base fabrics of polyester and cotton. Heading 5903, HTSUSA, provides for "Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902." Note 2 to chapter 59 provides that heading 5903 applies to:
(a) Textile fabrics, impregnated, coated covered or laminated with plastics, whatever the weight per square meter and whatever the nature of the plastic material (compact or cellular), other than:
(1) Fabrics in which the impregnation, coating or covering cannot be seen with the naked eye (usually chapters 50 to 55, 58 or 60); for the purpose of this provision, no account should be taken of any resulting change of color;
(2) Products which cannot, without fracturing, be bent manually around a cylinder of a diameter of 7 mm, at a temperature between 15ºC and 30ºC (usually chapter 39);
(3) Products in which the textile fabric is either completely embedded in plastics or entirely coated or covered on both sides with such material, provided that such coating or covering can be seen with the naked eye with no account being taken of any resulting change of color (chapter 39);
(4) Fabrics partially coated or partially covered with plastics and bearing designs resulting from these treatments (usually chapters 50 to 55, 58 or 60);
(5) Plates, sheets or strip of cellular plastics, combined with textile fabric, where the textile fabric is present merely for reinforcing purposes (chapter 39); or
(6) Textile products of heading 5811.
As set forth above, the subject acrylic polymer is not within the scope of heading 5902, HTSUSA, which covers "Tire cord fabric …." Moreover, none of the six exceptions to note 2(a) to chapter 59, preclude the subject merchandise from classification in heading 5903, HTSUSA. Accordingly, the subject merchandise is properly classified under subheading 5903.90.2500, HTSUSA, which provides, in part, for "Textile fabrics impregnated, coated, covered or laminated with plastics, … of man-made fibers, not over 70 percent by weight of rubber or plastics."
In your letter, you contend that the woven fabric is not covered with a plastic material. You submitted a letter from Rockland Industries, Inc. in which the company contends that "[a]t no time in the manufacturing of this new Blackout lining is any form of PVC or plastic utilized." However, this general claim falls short of disqualifying the subject coating material applied to one face the woven fabric from fulfilling the definition of a plastic as defined by the tariff.
Based on Rockland Industries, Inc. own description, the coating on the woven fabric is a "self-crosslinking acrylic emulsion." The Customs laboratory concurs with this description that the coating is an acrylic polymer, which, as described above, is properly considered to be a plastic. Therefore, the merchandise is classified in heading 5903, HTSUSA, which provides, in part, for "Textile fabrics impregnated, coated, covered or laminated with plastics …. "
HOLDING:
The subject merchandise is properly classified in subheading 5903.90.2500, HTSUSA, which provides for "Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902: Other: Of man-made fibers: Other: Other." The current applicable general column one rate of duty is 7.7 percent ad valorem. The textile restraint category is 229. There are no applicable quota/visa requirements for the products of World Trade Organization (WTO) members. The textile category number above applies to merchandise produced in non-WTO countries.
NY H81427, dated August 15, 2001, is hereby AFFIRMED.
The designated textile and apparel category may be subdivided into parts. If so, the 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 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 updated weekly and is available for inspection at your local Customs office. The Status Report on Current Import Quotas (Restraint Levels) is also available on the Customs Electronic Bulletin Board (CEBB) which can be found on the U.S. Customs Service Website at www.customs.gov.
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,
Myles B. Harmon, Acting Director
Commercial Rulings Division