CLA-2 OT:RR:CTF:TCM W968391 ASM

Port Director
Bureau of Customs and Border Protection
Cleveland Service Port
6747 Engle Road
Middleburg Heights, OH 44130-7939

RE: Application for Further Review of Protest No. 4101-06-100051; Tariff Classification of Polyurethane Coated Fabric

Dear Port Director:

This is in reference to a Protest and Application for Further Review (AFR), filed on behalf of the importer, Top Value Fabric Inc., regarding the classification of certain coated fabric under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Samples of the subject fabric have been received and examined by Customs and Border Protection (CBP).

FACTS:

This Protest concerns six entries of merchandise imported through the port of Cleveland Ohio and entered from January 28, 2005 through July 21, 2005. Counsel for the importer describes the subject fabric as follows: “100% nylon 1000 Denier woven Cordura Nylon fabric, polyurethane (PU) coated, 59/60 inch width, with a thread count of 33 x 28. The weights in gr/yd are: Yarn weight: 415gr. (89.2%), PU coating 50gr. (10.8%); Total weight: 465gr. (100%). The fabric is used to make backpacks.” The subject fabrics are variously described on the commercial invoices as follows: “1000D Cordura, DWR PU coated 59-60 [inches]”; “500D Cordura, DWR PU 30g coated 59-60 [inches]”; “1000D Cordura, DWR PU coated 59 [inches]”; and “1050D Dupont Ballastic Nylon, DWR PU coated 58-59 [inches]”. The invoices also indicate many different colors of fabric, i.e., black, gold, forest green, navy, red, royal, olive, dark brown, burgundy, and hunter green. Since there are no identifiable style numbers which correspond to the various combinations of denier, color, coatings, width, etc., for the purposes of this ruling, the classification determinations made herein only apply to those articles contained in the relevant entries in which the fabric has been coated with polyurethane in a manner identical to the samples submitted to this office.

We note that the term “Cordura”® is a trademark of the DuPont Company for air-textured nylon yarn. Also, denier is a numbering system for describing linear densities of silk and manufactured filament yarns and fibers other than glass.

The importer timely filed a Protest and AFR asserting that the subject fabric was classifiable in heading 5903, HTSUSA, because it included all coated fabrics regardless of the weight per square meter or nature of the plastic material, so long as the plastic component can be seen with the naked eye. The protestant further argued that the fabric is coated with sufficient plastic to alter the visual characteristics of the fabric and asserted that the intersections created by the warp and weft (interstices) are sufficiently filled to obstruct light from shining through when compared to the uncoated fabric sample.

The CBP, Cleveland, Ohio Port, determined that the subject fabric is excluded from classification in heading 5903, HTSUSA, because it is not a “coated” fabric according to the definition contained in Note 2(a)(1) to Chapter 59, HTSUSA. Thus, the subject fabric was classified and liquidated as “uncoated” fabric in subheading 5407.42.0060, HTSUSA. The application for further review was approved by the CBP, Cleveland, Ohio Port, and forwarded to this office for issuance of a ruling.

ISSUE: What is the proper classification for the merchandise?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI). 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 GRI may then be applied. The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

Two headings of the HTSUSA are under consideration for the classification of these textile fabrics:

Woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404.

Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902.

Inasmuch as the woven fabric has received a polyurethane plastics coating, we first consider heading 5903, HTSUSA, which provides for “Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902”.

Note 2(a) to Chapter 59 excludes certain articles from classification in heading 5903, and provides in relevant part as follows:

Heading 5903 applies to:

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:

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[.]

The Explanatory Notes to heading 5903 (EN 59.03(1)) affirm this exclusion by providing that “. . . textile fabrics in which the impregnation, coating or covering cannot be seen with the naked eye or can be seen only by reason of a resulting change in color usually fall in Chapters 50 to 55, 58 or 60”.

Since classification is governed not just by the terms of the headings, but by the relevant section and chapter notes, we must also consider the Legal Notes at Section XI, Textiles and Textile Articles, that provide in relevant part as follows:

1. This section does not cover:

* * *

Woven, knitted or crocheted fabrics, felt or nonwovens, impregnated, coated, covered or laminated with plastics, or articles thereof, of chapter 39; * * *

For the purposes of chapters 50 to 60:

* * *

(b) Chapters 50 to 55 and 60 do not apply to goods of chapters 56 to 59.

Chapter 54, covers “Man-made Filaments; Strip and the Like of Man-Made Textile Materials”. However, the General ENs to Chapter 54 specifically provide that “The General Explanatory Note to Section XI should be taken into account in reading the Explanatory Note to this Chapter.” The General EN to Section XI reiterates the exclusion of certain materials and products such as those which have been previously mentioned in Section XI, Note 1(h), i.e., “Woven, knitted or crocheted fabrics, felt or nonwovens, impregnated, coated, covered or laminated with plastics, or articles thereof, of chapter 39”.

In finding which of the competing headings correctly classifies the subject fabrics, it is first necessary to determine if the fabric bears a coating that is visible to the naked eye within the meaning of the tariff. As set forth above, CBP determines whether fabric is coated for purposes of classification under heading 5903, HTSUSA, if the plastic coating is visible to the naked eye. This office has established criterion by which CBP will deem coating visible to the naked eye. In Headquarters Ruling Letters (HQ) 083127, dated November 8, 1989, and 087668, dated January 9, 1991, this office noted that where coating served to "blur" or "obscure" a fabric's underlying weave, the fabric was deemed visibly coated for purposes of classification within heading 5903, HTSUSA.

As we noted in HQ 955429, dated December 7, 1993, the determination as to whether a fabric is “coated” within the meaning of heading 5903, HTSUSA, can be based on a comparison made between the coated sample of a style with its uncoated counterpart. In HQ 955429, CBP noted that all of the fabric’s interstices had been filled with either a polyurethane coating or a silicone elastomer coating. This determination was made by observing that the interstices in the uncoated samples permitted light to shine through, while the coated fabric obstructed the light. See also HQ 950022, dated September 26, 1991.

In applying this visibility standard to the fabrics now in question, we are of the opinion that the polyurethane coating has not blurred the underlying weave of the fabric. A visual comparison of the coated and uncoated samples yields the finding that the coated side has not visibly diminished the detail of the underlying warp and weft. Nor is the plastic coating visible at the intersections of the weave. In fact, both the coated and uncoated samples permit light to shine through to the same degree.

The protestant has cited rulings (NY 898520, dated June 14, 1994; NY J87755, dated August 8, 2003; and NY E83240, dated June 15, 1999) in which certain fabrics received a less substantial PU plastic coating than the subject plastic coating (accounting for 10.8 percent of the total weight of the fabric) and we found those fabrics with less substantial coatings (ranging from 5.5 percent to 10.2 percent total weight of the fabric) to have coatings that were visible to the naked eye. However, we do not agree that these rulings can be directly applied to the fabric now in issue, solely on the basis of the percentage of plastic coating as per the total weight of the fabric. In fact, yarn composition, thickness, density, texture, weight, weave tensions, etc., can all serve to make a plastic coating more or less visible to the naked eye. Thus, we find that such comparisons cannot be the only criteria for finding that a fabric has a visible coating. In this instance, we have made the necessary assessments by comparing coated and uncoated samples of the same fabric. In view of the foregoing, we find that the subject samples are not visibly coated with plastic within the meaning of the HTSUSA. Therefore, the fabrics now in question cannot be classified in heading 5903, HTSUSA, because fabrics that are not visibly coated with plastic are excluded from classification in these headings. Accordingly, we find that the fabric is properly classified in heading 5407, HTSUSA, which provides for “Woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404”.

The following rulings fully support this classification in that certain woven fabrics coated with plastics were found to be properly classified in heading 5407, HTSUSA, because it was determined that the plastic coatings were not visible to the naked eye within the meaning of the tariff: HQ 089545, dated August 30, 1991 (there was no visible indication, e.g. “blurring” or “obscuring” of the weave pattern, that the fabric was coated); HQ 952697, dated January 12, 1993 (presence of a “sheen” was deemed insufficient evidence of a visible coating); and HQ 954825, dated December 8, 1993 (the mere effects of coating, such as “stiffness” or “sheen” are not grounds for determining the coating is visible).

HOLDING:

The subject merchandise, which has been identified as “Cordura”® Nylon fabric (100 percent nylon woven fabric), polyurethane (PU) coated, is correctly classified in subheading 5407.42.0060, HTSUSA, 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: Dyed, Weighing more than 170 g/m2”. The general column one rate of duty at the time of entry was 14.9 percent ad valorem. The applicable textile category is 620.

The Protest should be DENIED. In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together with the Customs 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