CLA-2 CO:R:C:T 956200 SK
John Clayton
Bainbridge/Aquabatten, Inc.
252 Revere Street
Canton, MA 02021
RE: NYRL 894819 (3/31/94) affirmed; classification of "coated
fabric"; visible to the naked eye prerequisite of Chapter Note
2(a)(1) to Chapter 59; subheading 5407.42.0030, HTSUSA.
Dear Mr. Clayton:
This is in response to your letter of April 5, 1994, in
which you request a reconsideration of New York Ruling Letter
(NYRL) 894819 which was issued to you on March 31, 1994. In NYRL
894819, two samples of polyurethane coated nylon woven fabric
were classified under subheading 5407.42.0030, Harmonized Tariff
Schedule of the United States Annotated (HTSUSA). Upon review of
NYRL 894819, this office affirms the holding in that case. Our
analysis follows.
FACTS:
The two fabric samples classified in NYRL 894819 were
referenced A-Red and B-Gray. Laboratory analysis revealed that
A-Red was composed of 95 percent filament nylon and 5 percent
polyurethane coating. The fabric component weighed 143.78 grams
per square meter and the polyurethane coating weighed 7.46 grams
per square meter. The total weight of sample A-Red was 151.24
grams per square meter. The fabric was manufactured using 420
denier yarns in both the warp and filling and contained 18.8
single yarns per centimeter in the warp and 13.3 single yarns per
centimeter in the filling.
Laboratory analysis revealed that B-Gray was composed of 92
percent filament nylon and 8 percent polyurethane coating. The
fabric component weighed 143.44 grams per square meter and the
polyurethane coating weighed 11.87 grams per square meter. The
total weight of sample B-Gray was 155.31 grams per square meter.
The fabric was manufactured using 420 denier yarns in both the
warp and filling and contained 18.8 single yarns per centimeter
in the warp and 13.3 single yarns per centimeter in the filling.
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ISSUE:
What is the correct classification of the subject
merchandise?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is governed
by the General Rules of Interpretation (GRI's). GRI 1 requires
that classification be determined according to the terms of the
chapter notes and, unless otherwise required, according to the
remaining GRI's. Where 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's may be applied, taken in
order.
Chapter Note 2(a)(1) to Chapter 59 of the tariff schedule
states that heading 5903 applies to "[T]extile fabrics
impregnated, coated, covered or laminated with plastics ... other
than fabrics in which the impregnation, coating, covering or
lamination cannot be seen with the naked eye." No account is to
be taken of any resulting change in color. Accordingly,
the sole criterion upon which Customs is to determine whether
fabric is coated for purposes of classification under heading
5903, HTSUSA, is based on visibility: 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 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
Headquarters Ruling Letter (HRL) 082644 of March 2, 1990.
We recognize that the "visible to the naked eye" test for
determining whether fabric is classifiable as coated creates a
rather subjective standard in that it requires individuals to
determine what is visually discernable and what is not. This
test, however, is the only standard Customs is authorized to
utilize. Legal Note 2(a) is an international legal note. As
such, the United States is bound by its terms, as are the other
parties to the International Convention on the Harmonized
Commodity Description and Coding System, and this agency is not
free to unilaterally disregard or alter its language. In the
instant case, we do not agree that we have been arbitrary in the
assessment of the fabrics the subject of NYRL 894819. As the
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plastic coatings on styles A-Red and B-Gray were deemed not
visible to the naked eye, these fabrics were correctly precluded
from classification under heading 5903, HTSUSA. Classification
of the subject merchandise is proper under heading 5407, HTSUSA,
which provides for, in pertinent part, woven fabrics of synthetic
filament yarn.
HOLDING:
NYRL 894819 is affirmed.
Styles A-Red and B-Gray are classifiable under subheading
5407.42.0030, HTSUSA, under the provision for "[W]oven fabrics of
synthetic filament yarn, including woven fabrics obtained from
materials of heading 5404: other woven fabrics, containing 85
percent or more by weight of filaments of nylon or other
polyamides: dyed... weighing not more than 170 grams per square
meter," dutiable at a rate of 17 percent ad valorem. The textile
quota category is 620.
The designated textile and apparel categories 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 the local Customs office.
Due to the nature of the statistical annotation (the ninth
and tenth digits of the classification) and the restraint
(quota/visa) categories, you should contact the local Customs
office prior to importation of this merchandise to determine the
current status of any import restraints or requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division