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HQ 087042


May 9, 1990

CLA-2 CO:R:C:G 087041/087042 JS

CATEGORY: CLASSIFICATION

TARIFF NO.: 5903.90.2500; 5903.90.3010

Mr. Maurice J. Deslauriers
C.S. Emery & Company Inc.
One Emery Drive
P.O.Box 149
Norton, Vermont 05907

RE: Upholstery Fabrics

Dear Mr. Deslauriers:

This is in response to your letters dated March 23 and 28, 1990, in which you requested classification of two upholstery fabrics under the Harmonized Tariff Schedules of the United States Annotated (HTSUSA).

FACTS:

Two samples were submitted for inspection, style nos. 5441 and 0502. Style no. 5441 is a woven material constructed of 100% nylon. Style no. 0502 is also a woven material constructed of 58% wool, 29% nylon and 13% modacrylic. The back surface of both samples are coated with an acrylic/latex compound (the latex in this instance refers to small particles in an aqueous suspension, not rubber) which is composed as follows:

1) 20% Rhodlex FM-8814K made up of 53% water and 47% acrylic;

2) 76% Amperse F/R 51 made up of 55% decabromodiphenyl, 34% water and 11% antimony trioxide;

3) 2% ASE 60 made up of 71% water and 29% acrylic co- polymere;

4) 2% Teflon N.P.A. made up of 92% water, 5% perfluoro- alkylmethacrylate and 3% perfluoroalkyl mixture

The acrylic compound is therefore a plastic for purposes of classification.

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 grainy white substance on the back of the upholstery fabrics. Although this coating is not uniformly applied to the fabric, creating a pattern of small areas which are not coated or sparsely coated, it nonetheless creates a change in the surface character of the fabric. See, HRL 086130 dated March 1, 1990 (coating must create change in surface character of fabric to be considered visible.) Therefore, the samples at issue are visibly coated for purposes of classification in chapter 59, HTSUSA.

HOLDING:

As a result of the foregoing, fabric style no. 5441 is classified under subheading 5903.90.2500, HTSUSA, textile category 229, as textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902, other, of man-made fibers, other, other, dutiable at the rate of 8.5% ad valorem.

Articles which meet the definition "goods originating in the territory of Canada" (see General Note 3(c)(vii)(B), HTSUSA) are subject to reduced rates of duty under the United States-Canada Free Trade Agreement Implementation Act of 1988. Since this merchandise constitutes "goods originating in the territory of Canada," the applicable rate of duty is 6.8% ad valorem.

Fabric style no. 0502 is classified under subheading 5903.90.3010, HTSUSA, textile category 414, as textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902, other, other, of wool or fine animal hair, dutiable at the rate of 5.3% ad valorem. As a product of Canada, the applicable rate of duty is 4.2% 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,

Jerry Laderberg, Acting Director
Commercial Operations Division

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