CLA-2 OT:RR:CTF:TCM W968381 ADK
Mr. Randy Rucker
Drinker Biddle Gardner Carton
191 N. Wacker Drive
Suite 3700
Chicago, Illinois 60606
RE: Tariff classification of two coated textile fabrics; Revocation of New York Ruling M80456, dated March 7, 2007
Dear Mr. Rucker:
This letter is in response to your request of July 20, 2006, on behalf of your client Synthetic Resources, Inc. (Synthetic Resources) for reconsideration of New York Ruling Letter (NY) M80456, dated March 7, 2006. In that ruling, United States Customs and Border Protection (CBP) determined that the two woven fabrics at issue were classifiable under heading 5407, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). We have reviewed NY M80456 and find it to be in error.
Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. §1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation was published on July 5, 2007, in the Customs Bulletin, Volume 41, No. 28. No comments were received in response to this notice.
FACTS:
The first item, style 4005036AU, consists of a plain woven fabric (400D x 400D/50 x 36), which is dyed black and is composed of 100% non-textured nylon man-made fibers. This material has been coated on one side with a clear polyurethane plastic coating. Synthetic Resources provided the following weight specifications for this material:
Wt. Of Fabric: 140 g/m² (89%)
Wt. Of PU: 18 g/m² (11%)
Total Wt.: 158 g/m² (100%)
The second item, style 4006038AU, consists of a 100% nylon, plain weave fabric (400D x 400D/60 x 38), which is dyed black. This material has been coated on one side with a clear polyurethane plastic coating. Synthetic Resources provided the following weight specifications for this material:
Wt. Of Fabric: 154 g/m² (79%)
Wt. Of PU: 41 g/m² (21%)
Total Wt.: 195 g/m² (100%)
In NY M80456, a third item, style 2006454AU, was also at issue. However, due to insufficient information, CBP did not rule on the classification of that fabric. Style 2006454AU is not under consideration in the present matter.
ISSUE:
What is the proper classification under the HTSUS for styles 4005036AU and 4006038AU?
LAW AND ANALYSIS:
Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRIs). 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 2 through 6 may then be applied in order. The HTSUS provisions under consideration are as follows:
5407 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:
5407.42.00 Dyed:
5407.42.0030 Weighing not more than 170 g/m2 (620)….
5407.42.0060 Weighing more than 170 g/m2 (620)….
* * *
5903 Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902:
5903.20 With polyurethane:
* * *
Of man-made fibers:
* * *
Other:
* * *
5903.20.2500 Other (229)
* * *
In addition to the terms of the headings, classification of goods under the HTSUS is governed by any applicable section or chapter notes. Note 2 to chapter 59, provides, in pertinent part:
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…; for the purpose of this provision, no account should be taken of any resulting change of color.
(Emphasis added)
* * *
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding nor dispositive, the ENs 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. The EN to heading 5903 provides, in pertinent part:
This heading covers textile fabrics which have been impregnated, coated, covered or laminated with plastics (e.g. poly(vinyl chloride)).
Such products are classified here whatever their weight per m2 and whatever the nature of the plastic component (compact or cellular), provided:
(1) That, in the case of impregnated, coated or covered fabrics, the impregnation, coating or covering can be seen with the naked eye otherwise than by a resulting change in colour.
(Emphasis in original)
* * *
In NY M80456, CBP classified the subject fabrics in heading 5407, HTSUS, as “woven fabrics of synthetic filament yarn.” In the request for reconsideration, Synthetic Resources argues that the fabrics are instead classifiable under heading 5903, HTSUS, as “textile fabrics impregnated, coated, covered or laminated with plastics.”
It is undisputed that the subject fabrics have been coated with a polyurethane layer as required by heading 5903, HTSUS. At issue is whether this coating is visible to the naked eye as required by note 2 to chapter 59. In making such determinations, CBP may consider a number of factors, including:
Whether the coating has visibly altered the surface of the fabric (Headquarters Ruling (HQ) 967884, dated October 26, 2005);
Whether the plastic is visible in the interstices of the fabric (See HQ 961172, dated August 6, 1998);
Whether the thread or weave is blurred or obscured, (HQ 089772, September 11, 1991); and
Whether the surface of the fabric is leveled or smoothed and whether the coating itself creates a distinct visible pattern (Id.).
These factors are not exclusive and none is determinative. See HQ W968300, dated February 8, 2007.
In NY M80456, CBP determined that the fabrics at issue were not visible to the naked eye and were therefore excluded from classification in heading 5903, HTSUS. We now find that determination to be in error. A visual inspection of these fabrics shows that the polyurethane has altered the surface of the fabric by obscuring the thread or weave. The coated surface of the fabric is smoother than the uncoated surface. In addition, the coating is visible in the interstices of the fabric. According to the criteria enumerated by CBP administrative precedent, the subject fabrics, style numbers 4005036AU and 4006038AU, feature a coating which is visible to the naked eye. They are therefore classifiable as coated textile fabrics under heading 5903, HTSUS.
HOLDING:
By application of GRI 1 and Note 2 to chapter 59, style numbers 4005036AU and 4006038AU are classifiable under heading 5903, HTSUS. Specifically, they are classifiable under subheading 5903.20.2500, HTSUSA, which provides for “[t]extile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902: With polyurethane: Of man-made fibers: Other: Other.” The 2007 general, column one rate of duty is 7.5 percent ad valorem.
EFFECT ON OTHER RULINGS:
NY M80456, dated March 7, 2006, is hereby revoked. In accordance with 19 USC §1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division