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HQ 086139


January 16, 1990

CLA-2 CO:R:C:G 086139 JS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6002.93.0080

Mr. R. B. McKenny
C.S. Emery & Company
P.O. Box 307
Derby Line VT 05830

RE: Coated Nylon Fabric

Dear Mr. McKenny:

This is in reference to your letter of October 27, 1989, on behalf of Consoltex, Montreal requesting classification of two samples of nylon material under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

Both samples are constructed of a 100 percent denier nylon, plain weave, with a count of 104 ends and 84 picks with 59-60 inch width. You state that both fabrics are coated with 1 ounce per square yard of fire retardant polyurethane plastic which renders them water proof, and each is treated with a fluorocarbon water repellent and antistatic finish. The total weight of the material is given as 2.8 +/- 0.15 ounce per square yard with the base fabric as 1.8 and the coating as 1.0 ounces per square yard. Sample one is a navy blue fabric intended for the manufacture of jackets; sample two is an orange fabric that will be made into jackets and tents.

ISSUE:

Whether the fabric at issue is considered "coated with plastics" for purposes of classification under the HTSUSA?

LAW AND ANALYSIS:

Classification of products under the HTSUSA is governed by the General Rules of Interpretation (GRI), taken in order. GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.

Heading 5903, HTSUSA, provides for classification of textile products impregnated, coated, covered or laminated with plastics, other than tire cord covered by Heading 5902.

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

Heading 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 50-55, 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. 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 lit room, we note that the instant merchandise has a dull matte finish on the surface caused by the application of polyurethane plastic; this uniform change, however, is not in and of itself distinguishable as "coated". The visual characteristics of the fabric itself have not been altered: the weave and knit of the two samples are readily discernable. The nylon fabric, therefore, is not considered coated with plastics.

HOLDING:

As a result of the foregoing, the instant merchandise is classified under subheading 6002.93.0080, HTSUSA, textile category 222, as other knitted or crocheted fabrics, other, of man-made fibers, other. The applicable rate of duty is 14 percent ad valorem.

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 Operations Division


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