CLA-2 OT:RR:CTF:TCM H027187 JPJ
Mr. Russ McAlister
905 Holliston Mills Road
Church Hill, TN 37642
RE: Classification of a textile fabric covered with paper used in the manufacture of book covers
Dear Mr. McAlister:
This is in response to your letters, dated January 3, 2008 and supplemental letter dated March 18, 2008, on behalf of Holliston LLC (“Holliston”), to the National Commodity Specialist Division (NCSD) in which you requested reconsideration of New York Ruling letter (NY), NY N019300, issued to Phoenix International Freight Services, Ltd., on November 13, 2007. Your request for reconsideration of NY N019300 was forwarded to this office by the NCSD for a response.
The product at issue is a covered textile fabric, identified by you as “Essex” (code 0988-0986), used in the manufacture of book covers.
It is a plain, dyed 100% viscose man-made fiber woven fabric covered with paper imported in 135 cm rolls. The paper is joined to back of the textile fabric with an acrylic resin. The paper is used to absorb the glue around the fabric when both layers are combined.
Whether the textile fabric covered with paper is classified in heading 5901, HTSUS, as fabrics coated with gum or amylaceous substances, of a kind used for the outer covers of books or the like, heading 5905, HTSUS, as textile wall coverings or heading 5907, HTSUS, as a coated, covered or impregnated fabric.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI’s). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.
The HTSUS provisions under consideration are as follows:
5901 Textile fabrics coated with gum or amylaceous substances, of a kind used for the outer covers of books or the like; tracing cloth; prepared painting canvas; buckram and similar stiffened textile fabrics of a kind used for hat foundations:
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5905 Textile wall coverings:
* * * * * *
5907 Textile fabrics otherwise impregnated, coated or covered; painted canvas being theatrical scenery, studio back-cloths or the like:
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Note 1 to Chapter 59, HTSUS provides:
Except where the context otherwise, requires, for the purposes of this chapter the expression “textile fabrics” applies only to the woven fabrics of chapters 50 to 55 and headings 5803 and 5806, the braids and ornamental trimmings in the piece of heading 5808 and the knitted or crocheted fabrics of headings 6002 to 6006.
Note 3 to Chapter 59, HTSUS, provides:
For purposes of heading 5905, the expression “textile wall coverings” applies to products in rolls, of a width of not less than 45 cm, suitable for wall or ceiling decoration, consisting of a textile surface which has been fixed on a backing or has been treated on the back (impregnated or coated to permit pasting).
This heading does not, however, apply to wall coverings consisting of textile flock or dust fixed directly on a backing of paper (heading 4814) or on a textile backing (generally heading 5907).
Note 5 to Chapter 59, HTSUS, provides in relevant part:
Heading 5907 does not apply to:
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;
* * * *
(d) Fabrics finished with normal dressings having a basis of amylaceous or similar substances;
(e) Wood veneered on a backing of textile fabrics (heading 4408);
(f) Natural or artificial abrasive powder or grain, on a backing of textile fabrics (heading 6805);
(g) Agglomerated or reconstituted mica, on a backing of textile fabrics (heading 6814); or
(h) Metal foil on a backing of textile fabrics (generally Section XIV or XV).
The Harmonized Commodity Description and Coding System Explanatory Notes ("EN’s") constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN’s provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).
The EN for heading 59.01, HTSUS, states, in relevant part:
(1) Textile fabrics coated with gum or amylaceous substances, of a kind used for the outer covers of books or the like.
These are generally plain weave woven fabrics, usually of cotton, linen or man-made fibres, heavily coated with gum or amylaceous substances (e.g., starch), of a kind used in the manufacture of book outer covers, boxes, spectacle or cutlery cases, knife sheaths, etc.
They may be unbleached, bleached, dyed or printed and the surface is often goffered, pleated, shagreened (given a rough surface), embossed or otherwise worked.
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The EN for heading 59.05, HTSUS, states, in relevant part:
This heading covers textile wall coverings which satisfy the definintion in Note 3 to Chapter 59, that is to say, products in rolls, of a width of not less than 45 cm, suitable for wall or ceiling decoration, consisting of a textile surface which has been fixed on a backing of any material (e.g., paper) or has been treated on the back (impregnated or coated to permit pasting).
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In the wall coverings of this heading the textile surface may be coloured, printed or otherwise decorated and, where there is a backing, may cover the surface of that backing entirely or in part.
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The EN for heading 59.07, HTSUS, states, in relevant part:
TEXTILE FABRICS OTHERWISE IMPREGNATED, COATED OR COVERED
This group covers textile fabrics (excluding those of headings 59.01 to 59.06), which have been impregnated, coated or covered, provided the impregnation, coating or covering can be seen with the naked eye; for that purpose, no account should be taken of any resulting change of colour.
Textile fabrics in which the impregnation, coating or covering cannot be seen or can be seen only by reason of a resulting change in colour, and fabrics finished with normal dressings having a basis of amylaceous or similar substances are excluded (see Note 5 to this Chapter); these usually fall in Chapters 50 to 55, 58 or 60. Examples of these excluded fabrics are those impregnated with size, starch or similar dressings (e.g., organdies, muslin), or with substances designed solely to render them crease-proof, moth-proof, unshrinkable or waterproof (e.g., waterproof gabardines or poplins).
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In your request for reconsideration of NY N019300, you cited NY 805339, dated January 3, 1995, which classified woven fabrics from various textile yarns and a variety of weaves backed with a permanently affixed paper used as bookbinding materials under heading 5905, HTSUS. However, you also question the applicability of heading 5901, HTSUS.
We initially note that Holliston’s product is a “textile fabric” for purposes of Chapter 59, because it is a woven fabric composed of the 100% viscose man-made fibers classifiable in Chapter 55, HTSUS. See Note 1 to Chapter 59, HTSUS.
Nothing in the manufacturer’s product specifications indicates that the construction of the fabric involves coatings with gum or amylaceous substances such as starch. Therefore, despite the fact that the product is actually used by Holliston for the outer covers of books or the like, the textile fabric is not coated with the requisite gum or amylaceous substances. Therefore, it cannot be classified in heading 5901, HTSUS.
Heading 5905 is an eo nomine provision for textile wall coverings.
As noted above, “textile wall coverings” are defined in Chapter 59, Note 3.
Of particular importance is that the fabric must be “suitable for wall or ceiling decoration.” In determining whether an article is “suitable for use”, there must be evidence of more than casual, incidental, exceptional or possible use. See Headquarters Ruling Letter (HQ) 966691, dated May 3, 2004. The product specification sheet provided by the manufacturer evidences that the product is sold and actually used by Holliston as bookcloth. There is no evidence that it is “suitable for wall or ceiling decoration”. As such, it cannot be classified in heading 5905, HTSUS. Cf. NY 805339 in which it was expressly stated that the merchandise was suitable for use as wall covering.
The text of heading 5907, HTSUS, provides for, in relevant part: “Textile fabrics otherwise impregnated, coated or covered;. . .”. The term “covered” is not defined in either the Section or Chapter Notes or the ENs. In cases where a term is not defined in the section notes, chapter notes or the ENs of the HTSUS, it is construed in accordance with its common and commercial meaning. Unless a contrary legislative intent is shown, tariff terms are construed in accordance with their common and commercial meanings, which are presumed to be the same. Nippon Kogaku (USA), Inc. v. United States, 673 F.2d 380, 382 (1982); Schott Optical Glass, Inc. v. United States, 612 F.2d 1283, 1285 (1979). Absent an express definition, however, dictionaries, lexicons, scientific authorities, and other such reliable sources may be consulted to determine common meaning. C.J. Tower & Sons of Buffalo, Inc. v. United States, 673 F.2d 1268, 1271 (1982).
The Oxford English Dictionary Online at www.dictionary.oed.com defines the word “cover” as:
“1.To put or lay something over (an object), with the effect of hiding from view, protecting, or enclosing; to overlay, overspread with.
2. To put a covering of some specified kind on.
. . .
c. To put a surface layer of something on for ornament or use; to overlay, overspread with.
The merchandise at issue is “covered” in that the layer of paper joined to the back surface of the fabric is used to absorb the adhesive along the fabric when both layers, that is, the fabric and the paper, are combined. Insofar as the merchandise at issue is a covered textile fabric which is not otherwise provided for in Chapter 59, HTSUS, it is classifiable in heading 5907, HTSUS.
In accordance with GRI I, the textile fabric covered on the back surface with paper used in the manufacture of book covers is classified in heading 5907, HTSUS. It is specifically provided for in subheading 5907.00.15, HSTSUS, which provides for "Textile fabrics otherwise impregnated, coated or covered; painted canvas being theatrical scenery, studio back-cloths or the like: Laminated fabrics; fabrics specified in note 9 to section XI: Of man-made fibers: Other.” The 2009 general, column one rate of duty is 8% ad valorem. The textile category code is 229.
Duty rates are provided for convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.
Quota/visa requirements are no longer applicable for merchandise which is the product of World Trade Organization ("WTO") member countries. The textile category number above applies to merchandise produced in non-WTO member countries. Quota and visa requirements are the result of international agreements that are subject to frequent renegotiations and changes. To obtain the most current information on quota and visa requirements applicable to this merchandise, we suggest you check, close to the time of shipment, the "Textile Status Report for Absolute Quotas" which is available on our web site at www.cbp.gov. For current information regarding possible textile safeguard actions on goods from China and related issues, we refer you to the web site of the Office of Textiles and Apparel of the Department of Commerce at otexa.ita.doc.gov. A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.
Gail A. Hamill, Chief
Tariff Classification and Marking Branch