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HQ 087668


January 9, 1991

CLA-2 CO:R:C:G 087668 CRS

CATEGORY: CLASSIFICATION

TARIFF NO.: 5903.20.2500

James F. O'Hara, Esq.
Stein Shostak Shostak & O'Hara
Suite 1240
3580 Wilshire Boulevard
Los Angeles, CA 90010-2597

RE: Polyurethane plastic coating applied to nylon woven fabric is visible to the naked eye. Note 2(a)(1), Chapter 59. Use of magnification.

Dear Mr. O'Hara:

This is in reply to your letter of July 16, 1990, on behalf of your client, Fabtex, Inc., concerning the classification of nylon fabric coated with plastics under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Samples of the fabric were submitted with your request.

FACTS:

The merchandise in question consists of several styles of 100 percent nylon filament woven fabric coated on one surface with polyurethane plastic and imported in 60 inch wide rolls. The fabrics are manufactured in Taiwan and are designated style nos. 159-200, 159-421 and 159-800.

You have submitted two samples of style 159-200: one red; the other, black. The construction of style 159-200 is 210 x 210/64 x 54. The total weight of the fabric is 134.90 g/m, of which 109.00 g, or 80.8% represents the weight of the fabric itself, and 25.90 g, or 19.2%, the weight of the coating.

The construction of style 159-421 is 420 x 420/50 x 36. Two samples were submitted: one navy blue; one maroon. The total weight of this style fabric is 193.26 g/m, of which 159.36 g, or 82.5% represents the weight of the fabric, and 33.90 g, or 17.5%, the weight of the coating.

One sample of style 159-800 was submitted. The construction of the fabric, which is black in color, is 400 x 800/50 x 32. The total weight of the fabric is 244.12 g/m, of which 213.61 g, or 87.5%, represents the weight of the fabric, and 30.51 g, or 12.5%, the weight of the polyurethane plastic coating.

ISSUE:

Whether the fabrics in question are coated such that they are classifiable in heading 5903, HTSUSA.

LAW AND ANALYSIS:

Heading 5903, HTSUSA, covers textile fabrics impregnated, coated, covered or laminated with plastics. Note 2(a)(1), Chapter 59, defines the scope of heading 5903 as extending to all coated fabrics, whatever the weight per square meter and nature of the plastic material, other than those fabrics in which the impregnation, coating or covering cannot be seen with the naked eye.

However, Customs has previously determined that the naked eye test can be augmented in certain circumstances by the use of magnification. In a memorandum dated March 14, 1988, to the Area Director of Customs, New York Seaport, file 081679, magnification was deemed allowable as an aid in determining whether what could be seen on the surface of a fabric was indeed a coating or merely the fabric itself. Moreover, in examining textile fabrics to determine whether they are within the purview of heading 5903, Customs has recognized that it can be difficult using only the naked eye to distinguish coatings from other surface processing operations, e.g., heat calendaring, water repellency applications, etc. In such cases it is necessary to examine the fabric under magnification in order to determine whether heat deformation has occurred. See HRL 082644 dated March 2, 1990.

Nevertheless, before using to magnification, it is Customs' practice to examine fabrics with the naked eye alone to ascertain whether a coating is present. If nothing resembling a coating is present the fabric will not be deemed coated for classification purposes; but if a visual examination suggests the presence of a coating, it is within Customs' discretion to examine the fabric under magnification.

In Customs' opinion, the plastic coatings applied to the instant fabrics are visible to the naked eye without the use of magnification as we consider the coatings to have blurred the surface patterns of the fabrics. However, in order to confirm this view, the fabrics were examined under magnification.

HOLDING:

The three styles of nylon fabric at issue are classifiable in subheading 5903.20.2500, HTSUSA, under the provision for textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902, with polyurethane, of man-made fibers, other, other, and are dutiable at the rate of 8.5 percent ad valorem. The textile category is 229.

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 internal issuance of the U.S. Customs Service, which is available for inspection 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 importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,


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