CLA-2 OT: CTF: TCM: H226435 ERB
Port Director
Service Port of Miami
U.S. Customs & Border Protection
6601 NW 25 Street
Miami, FL 33122
Attn: Ainsley Lopez, Import Specialist
RE: Application for Further Review of Protest Number 5201-11-100416; Tariff classification of silver plated woven fabric made of 100% polyamide filament
Dear Port Director:
This letter is in reply to the Application for Further Review (AFR) of Protest Number 5201-11-100416 filed December 9, 2011, by counsel on behalf of AG Technologies, Inc. (AG). The Protest is against U.S. Customs & Border Protection’s (CBP) classification of three entries of silver plated woven fabric made of 100% polyamide filament under subheading 5809.00.00 of the Harmonized Tariff Schedule of the United States (HTSUS). Two samples were provided to this office. One sample was “uncoated” and the other sample was “coated” with silver.
FACTS:
Three entries of the subject fabric entered the United States through the Port of Miami on June 14, 2010, July 1, 2010, and July 29, 2010. All three entries were liquidated on June 17, 2011, classified under subheading 5809.00.00, HTSUS, which provides for, “Woven fabrics of metal thread and woven fabrics of metalized yarn of heading 5605, of a kind used in apparel, as furnishing fabrics or for similar purposes, not elsewhere specified or included.”
The subject merchandise, called Shieldex® Bremen, is described as silver woven fabric made of 100% polyamide filament (parachute silk). The fabric is imported in rolls that are 130 cm in width and 200 m in length, and weigh 46 g/m2. AG’s submission states that the subject fabric has various uses, including base material for EMI/RFI gaskets (electromagnetic interference, and radio-frequency interference, respectively), base material for EMI/RFI garments, passive static eliminator for copiers, fax machines and printers, EMI/RFI cable shielding, medical clothes, wound dressing and anti-microbial towels.
Samples obtained by this office were sent to CBP’s Laboratories and Scientific Services in San Francisco and Savannah for analysis. On July 16, 2013, the laboratory in New York issued a complete and consolidated report. This report, NY20121476, states the following:
The SEM pictures and Keyence microscopic pictures provided by San Fransisco [sic] Laboratory, and SEM pictures provided by Savannah Laboratory were analyzed by this laboratory in addition to the microscopic and stereo-microscopic examinations performed at the New York Laboratory.
Our analysis and observations on the tests performed reveal that the unravelled fabric is showing two shades at the intersections of the weave pattern. The surface area of the yarn exposed to the naked eye and the surface area of the yarn that is not visible to the naked eye show different shades when the fabric is unravelled. Secondly, Keyence pictures show the presence of foreign particles adhering or sticking to the fabric surface as well as between the filaments of the multi-filament yarns. These foreign particles were confirmed to be silver metal by the San Francisco Laboratory.
Based on the above observation we are of the opinion that the silver coating was applied to the woven fabric after it was woven.
AG argues in its submission that the subject fabric does not meet the criteria for heading 5809, HTSUS. AG further argues the fabric does not meet the technical requirement of heading 5911, HTSUS. Instead, AG argues that the goods are properly classified under subheading 5407.41.00, HTSUS, which provides for, “Woven 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: Unbleached or bleached.”
ISSUE:
What is the tariff classification of merchandise described as silver plated woven fabric made of 100% polyamide filament.
LAW & ANALYSIS:
Initially, we note that this matter is protestable under 19 U.S.C. § 1514(a) (2) as a decision on classification. The protest was timely filed, within 180 days of liquidation for entries made on or after December 18, 2004. See Miscellaneous Trade and Technical Corrections Act of 2004, Pub. L. 108-429, § 2103(2) (B)(ii), (iii)(codified as amended at 19 U.S.C. § 1514 (c) (3) (2006)).
Further Review of Protest Number 5201-11-100416 is properly accorded to AG pursuant to 19 C.F.R. § 174.24(a) because the decision against which the protest was filed is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee. Specifically, AG argues that CBP’s classification at liquidation is inconsistent with Headquarters Ruling (HQ) 957059, dated January 18, 1995, which classified metallized fabric.
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs). GRI 1 requires that classification be determined first according to the terms of the heading of tariff schedule and any relative section or chapter notes, and unless otherwise required, according to the remaining GRIs taken in their appropriate order.
The HTSUS headings under consideration here are as follows:
5407 Woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404:
5407.41 Other woven fabrics, containing 85 percent or more by weight of filaments of nylon or other polyamides:
***
5809 Woven fabrics of metal thread and woven fabrics of metalized yarn of heading 5605, of a kind used in apparel, as furnishing fabrics or for similar purposes, not elsewhere specified or included:
***
5907 Textile fabrics otherwise impregnated, coated or covered; painted canvas being theatrical scenery, studio back-cloths or the like:
***
5911 Textile products and articles, for technical uses, specified in note 7 to this chapter:
5911.10 Textile fabrics, felt and felt-lined woven fabrics, coated, covered or laminated with rubber, leather or other material, of a kind used for card clothing, and similar fabrics of a kind used for other technical purposes, including narrow fabrics made of velvet impregnated with rubber, for covering weaving spindles (weaving beams):
Note 7 to Chapter 59 states:
7. Heading 5911 applies to the following goods, which do not fall in any other heading of section XI:
Textile articles (other than those of heading 5908 to 5910) of a kind used for technical purposes (for example, textile fabrics and felts, endless or fitted with linking devices, of a kind used in papermaking or similar machines (for example, for pulp or asbestos-cement), gaskets, washers, polishing discs and other machinery parts).
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are generally indicative of the proper interpretation of these headings. See T.D. -80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The EN 59.11 states, in relevant part:
The textile products and articles of this heading present particular characteristics which identify them as being for use in various types of machinery, apparatus, equipment or instruments or as tools or parts of tools.
Subsection (B) Textile Articles of a Kind Used For Technical Purposes states the following, in relevant part:
All textile articles of a kind used for technical purposes (other than those of headings 59.08 to 59.10) are classified in this heading and not elsewhere in Section XI (see Note 7(b) to the Chapter); for example:
(4) Gaskets and diaphragms for pumps, motors, etc., and washers (excluding those of heading 84.84).
Although heading 5605 is not in consideration in the instant case, the EN 56.05 is nevertheless relevant as it provides guidance as to what constitutes metallized yarn. The EN states, in relevant part, that the heading covers: “Yarn consisting of any textile material (including monofilament, strip and the like and paper yarn) combined with metal thread or strip, whether obtained by a process of twisting, cabling or by gimping, whatever the proportion of the metal present…”. When yarn is metallized and is then subsequently woven, CBP has classified it in heading 5809, HTSUS. See HQ 966057, dated February 27, 2003; and see NY L83982, dated April 27, 2005. When yarn is woven into fabric and then coated with metal, CBP has classified it in heading 5907, HTSUS. See HQ H205397, dated October 9, 2012. As regards the subject fabric, CBP’s Laboratories and Scientific Services determined in its report unequivocally that the silver coating was applied to the fabric after it was woven. Therefore, the subject fabric is not provided for in heading 5809, HTSUS.
While the fabric is not constructed from metallized yarn, it is fabric coated with metal, namely silver. See CBP Laboratory Report NY20121476. The Court of International Trade (CIT) has had occasion to determine whether metallized fabric was a “coated fabric” in Verosol USA, Inc. v. United States, 941 F. Supp. 139, (Ct. Int’l Trade 1996). There, the Court noted that the metallization process imparts a visible sheen to fabric. The combination of this sheen, “along with the obscuring of the individual fabric fibers, and the enhancement of the texture of the fabric’s weave is enough to render the coating visible for purposes of Chapter 59.” Id at 141. See also HQ H140998dated May 22, 2013, (citing Verosol USA, Inc. v. United States, 941 F. Supp. 139, supra, CBP noted that the CIT held that the “reflectivity” of the aluminum tended to emphasize the fabric’s texture, and thus a coating which imparts sheen and is proven to be a direct result of the coating process, may be a factor in determining if a coating is “visible” to the naked eye. However, a sheen with nothing more, is not enough to prove that a fabric is coated. Ultimately the CIT held that the fabric has a visible coating for purposes of Chapter 59, HTSUS, because the “texture” of the weave was emphasized by the reflectivity of the coating, and since both parties acknowledged that the metallization process has imparted sheen, obscuring individual fabric fibers, and enhancing the fabric texture.).
The subject fabric has a highly visible sheen which enhances the texture of the fabric’s weave that are visible to the naked eye. It constitutes a “coating” for tariff purposes, and pursuant to the CIT’s analysis in Verosol USA, Inc. v. United States, 941 F. Supp. 139, supra. Though heading 5407 covers the type of fabric of which the instant merchandise is made, it does not provide for fabric with silver coating. Thus, heading 5407, HTSUS, describes part only of the good, and it is therefore not classified in heading 5407, HTSUS, at GRI 1.
Heading 5907, HTSUS, provides for coated textile fabrics of man-made fibers. Heading 5911, HTSUS, covers fabrics for technical uses, which may or may not be coated. Specifically, the heading describes fabrics for technical uses that are similar to coated fabrics used for card clothing. See Note 7 to Chapter 59.
A fabric is classified in heading 5911, HTSUS, when two prerequisites are met: (1) the fabric must be for a technical use; and (2) the fabric must be one of the fabrics enumerated in Note 7(a) (i) through (vi). This office has previously determined that similar fabric used in the manufacture of EMI and glare shields for video display terminals is for technical use. See HQ 952421, dated May 14, 1992; HQ 956956, dated September 23, 1994 (classifying four types of metallized textile fabrics for making EMI interference shielding gaskets in heading 5911, HTSUS, because they are fabrics for technical use); and see HQ 962967, dated November 21, 2000 (classifying EMI shielding gaskets, a fabric constructed with metal particles enmeshed therein).
Secondly, the subject fabrics are described by Note 7(a) (i) to Chapter 59 which requires that the textile fabric be either “coated, covered or laminated with rubber, leather or other material.” [Emphasis added], or, “similar fabrics [to the aforementioned] of a kind used for other technical purposes.” The subject fabric consists of woven nylon covered with silver. This is evidenced by the laboratory report issued by CBP, and therefore the subject merchandise is a coated textile fabric. Moreover, it is also a similar fabric of a kind used for technical purposes, because it is used in the manufacture of EMI/RFI gaskets. While the importer clarifies that the instant fabric will be for multiple uses, including garments and static eliminators, as well as for gaskets, the actual fabric is no different from those in the above noted rulings issued by this office. Therefore, it is described by the terms of heading 5911, HTSUS, as fabric for technical purposes.
Based on the foregoing, the subject fabric is classifiable under subheading 5911, HTSUS, which provides for, inter alia, other textile fabrics for technical use, covered with metal plating. This is a more specific classification than heading 5907, HTSUS, which merely provides for coated textiles, regardless as to whether they have a technical use.
HOLDING:
Pursuant to GRI 3(a), the subject merchandise is classified under heading 5911, HTSUS. It is specifically provided for in subheading 5911.10.2000, HTSUSA (Annotated), which provides for, “Textile products and articles, for technical uses, specified in note 7 to this chapter: Textile fabrics, felt and felt-lined woven fabrics, coated, covered or laminated with rubber, leather or other material, of a kind used for card clothing, and similar fabrics of a kind used for other technical purposes, including narrow fabrics made of velvet impregnated with rubber, for covering weaving spindles (weaving beams): Other: Other.” The column one rate of duty is 3.8% ad valorem.
Since classification of the merchandise as indicated above will result in a lower rate of duty as claimed, you are instructed to GRANT the protest.
You are to mail this decision, together with the CBP Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision Regulations and Rulings of the Office of International Trade will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division