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HQ 083540


October 3, 1989

CLA-2 CO:R:C:G 083540 HP

CATEGORY: CLASSIFICATION

TARIFF NO.: 5407.72.0010; 5407.72.0020; 5407.73.2010; 5407.73. 2020;
5903.20.2500

Mr. Duncan A. Nixon
Sharretts, Paley, Carter & Blauvelt, P.C. 80 Broad Street
New York, NY 10004

RE: Classification of coated fabrics

Dear Mr. Nixon:

This is in reply to your letters of October 21, 1988, and October 26, 1988, concerning the tariff classification of coated fabrics, produced in either Hong Kong or Taiwan, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Please reference your client The Leslie Fay Companies, Inc.

FACTS:

The merchandise at issue consists of ten styles of woven fabrics, of various colors, to be used for rainwear. You have stated that all samples are constructed from man-made filaments. We assume that the yarns of nylon and polyester have a tenacity not exceeding 60 centinewtons per tex. The composition of the samples is as follows:

Fabric Code No.
Fiber Content and Treatment

Fabric Weight
FL64367
100% polyester laminated with polyurethane

0.06 g/"2

93 g/m2
6KOS MJ
69% polyester, 31% nylon laminated with polyurethane

Not Provided
H2OFF
100% polyester laminated with polyurethane

0.1 g/"2

155 g/m2
LU2505
100% nylon laminated with polyurethane

0.1 g/"2

155 g/m2
ST385
100% nylon laminated with polyurethane

0.00324 oz/"2

142.37 g/m2
SH704
50% nylon, 50% polyester laminated with polyurethane

0.0026 oz/"2

114.25 g/m2
SH711
68% nylon, 32% polyester laminated with polyurethane

0.0028 oz/"2

123.03 g/m2
WRP731
85% polyester, 15% nylon calender finished

0.003 oz/"2

131.82 g/m2
L118
100% nylon laminated with polyurethane

Not Provided
1684
100% polyester laminated with polyurethane

0.06 g/"2

93 g/m2

ISSUE:

Whether the merchandise is considered coated with plastics under HTSUSA?

LAW AND ANALYSIS:

Style WRP731

Style WRP731 is not coated with any material; it is therefore classified as a woven fabric of synthetic filament yarn .

All Other Styles

Heading 5903, HTSUSA, provides for classification of textile fabrics impregnated, coated, covered or laminated with plastics, other than tire cord covered by Heading 5902. The General Rules of Interpretation (GRI's) to the HTSUSA govern the classification of goods in the tariff schedule. GRI 1 states, in pertinent part:

... classification shall be determined according to the terms of the headings and any relative section or chapter notes ....

Goods which cannot be classified in accordance with GRI 1 are to be classified in accordance with subsequent GRI's, taken in order .

Note 2 of Chapter 59, HTSUSA, provides, in pertinent part:

Heading No. 59.03 applies to:

(a) Textile fabrics, impregnated, coated, covered or laminated with plastics, ... other than:

(1) 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 colour; * * *

The wording of Note 2(a)(1) ("cannot be seen with the naked eye") is a clear expression by the drafters of the Harmonized System that a significant, if not substantial, amount of material must be added to a fabric for it to be considered "impregnated, coated, covered or laminated. The plastics material added to the fabric must be visibly distinguishable from that fabric without the use of magnification. Any change in the "feel" of the material is not taken into account. In essence, the plastics coating must alter the visual characteristic of the fabric in order for the fabric to be considered coated with plastics.

Applying the statutory test to the submitted samples, using normally corrected vision in a well lighted room, it is our opinion that Styles 6KOSMJ, SH704, SH711, 1684, H2OFF, and FL64367 do not have a polyurethane application visible to the naked eye. Any change in the material is due merely to a change in color, particularly within the interstices of the fabric, resulting from the plastic layer. Therefore, these styles are classifiable based upon their material and construction. To aid us in this pursuit, we note that Note 2(A) to Section XI provides:

Goods classifiable in chapters 50 to 55 or in heading 5809 or 5902 and of a mixture of two or more textile materials are to be classified as if consisting wholly of that one textile material which predominates by weight over each other textile material.

In Styles L118, ST385, and LU 2505, however, the weave of the fabric is no longer visible on the coated side. These samples have a polyurethane application which alters the surface charac ter of the material, apart from any change in color. Therefore, these styles are classifiable in heading 5903, HTSUSA, based upon their components.

HOLDING:

As a result of the foregoing, the instant merchandise is classified as follows: Styles L118, ST385, and LU2505 under subheading 5903.20.2500, HTSUSA, textile category 229, as textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902, with polyurethane, of man-made fibers, other, other. The applicable rate of duty is 8.5 percent ad valorem.

Styles 6KOSMJ, 1684, WRP731, and H2OFF under subheading 5407.72.0010, HTSUSA, textile category 619, as 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 synthetic filaments, dyed, weighing not more than 170 g/m2, containing 85 percent or more by weight of polyester filaments. The applicable rate of duty is 17 percent ad valorem.
Style FL4367 under subheading 5407.73.2010, HTSUSA, textile category 619, as 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 synthetic filaments, of yarns of different colors, other, weighing not more than 170 g/m2, containing 85 percent or more by weight of polyester filaments. The applicable rate of duty is 17 percent ad valorem.

Style SH711 under subheading 5407.72.0020, HTSUSA, textile category 620, as 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 synthetic filaments, dyed, weighing not more than 170 g/m2, other. The applicable rate of duty is 17 percent ad valorem.

Style SH704 under subheading 5407.73.2020, HTSUSA, textile category 620, as 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 synthetic filaments, of yarns of different colors, other, weighing not more than 170 g/m2, other. The applicable rate of duty is 17 percent ad valorem.

In the future, the Customs Service will entertain ruling requests for no more than five articles of merchandise at one time.

The designated textile and apparel category may be subdivided into parts. If so, 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 that you check, close to the time of shipment, the Status Report On Current Import Quotas ( Restraint
Levels), an issuance of the U.S. Customs Service, which is updated weekly and is available at your local Customs office.

Due to the changeable nature of the statistical annotation ( the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact your local Customs office prior to importing the merchandise to determine the current applicability of any import restraints or requirements.

Sincerely,

John Durant, Director
Commercial Rulings Division

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