United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 1991 HQ Rulings > HQ 0088055 - HQ 0088142 > HQ 0088140

Previous Ruling Next Ruling


HQ 088140


March 19, 1991

CLA-2 CO:R:C:T 088140 CMR

CATEGORY: CLASSIFICATION

TARIFF NO.: 5512.99.0020

Ms. Lisa Holland
Rogers & Brown Customs Brokers, Inc.
P.O. Box 20160
Charleston, South Carolina 29413

RE: Classification of laminated fabric for specialized apparel

Dear Ms. Holland:

This ruling is in response to your letter of August 29, 1990, on behalf of Hoechst Celanese Corporation, requesting the classification of a laminated fabric used in the manufacture of specialized apparel for protection against chemical agents. A sample swatch of the finished fabric was received with your request along with samples of the woven fabric and the knit fabric with a piece of adhesive webbing.

FACTS:

The fabric at issue is a laminated composite of conventional woven and knit fabrics, spherical activated carbon particles, and polyurethane adhesives. The fabric consists of three basic layers (clearly visible in cross-section) that have been laminated together using a polyurethane adhesive which is not visible in the cross-section. The first layer, which represents the outer layer of the clothing that will be made from this fabric, is a plain woven fabric composed of 20 percent polybenzimidazole staple fibers and 80 percent meta-aramid staple fibers. The center layer is glued to the woven fabric using a polyurethane adhesive. This layer is composed of activated carbon spheres and is clearly visible in cross-section. The carbon spheres act to absorb and deactivate toxic chemical agents such as nerve gas. The final layer is a jersey knit fabric composed of 20 percent polybenzimidazole staple fibers and 80 percent meta-aramid staple fibers. This layer is laminated to the activated carbon layer by means of a web of polyurethane plastic adhesive. The polyurethane web acts only as an adhesive and essentially disappears leaving no visible layer between the jersey knit and the activated carbon spheres.

The subject fabric will be assembled in Germany from U.S. fabrics. The adhesives and carbons will be provided by European vendors. This specialized fabric will be used to manufacture protective clothing in the United States for the U.S. military.

ISSUE:

Is the subject fabric classifiable in heading 5907, HTSUSA, which provides for, among other things, textile fabrics otherwise impregnated, coated or covered?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRIs). GRI 1 provides that "classification shall be determined according to the terms of the headings and any relative section or chapter notes, provided such headings or notes do not otherwise require, according to [the remaining GRIs taken in order]."

Heading 5907, HTSUSA, provides for, among other things, "textile fabrics otherwise impregnated, coated or covered."

Chapter Note 5, Chapter 59, provides in pertinent part:

Heading 5907 does not apply to:

(a) 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;

(f) Natural or artificial abrasive powder or grain, on a backing of textile fabrics (heading 6805);

The Explanatory Notes for heading 5907 state in pertinent part:

This group covers textile fabrics (excluding those of headings 59.01 to 59.06), which have been impregnated, coated or covered, provided the impregnation, coating or covering can be seen with the naked eye; for that purpose no account should be taken of any resulting change of colour.

The fabrics covered here include:

(G) Fabric, the surface of which is coated with glue (rubber glue or other), plastics, rubber or other materials and sprinkled with a fine layer of other material such as:

(1) Textile flock or dust to produce imitation suedes. * * * Fabrics covered with textile flock or dust to produce imitation pile (for example, corduroy) remain classified in this heading.
(2) Powdered cork (e.g., for wall coverings).

(3) Powered or small granules or glass (e.g., "microspheres" for cinematograph screens).

(4) Powdered mica.

The fabric at issue here is a composite of woven and knit fabrics with activated carbon spheres in the middle. The activated carbon sphere layer can clearly be seen with the naked eye when examining a cross-section of the fabric.

While upon an initial reading of the Explanatory Notes and examination of the fabric at issue it appears the fabric is of the type that would be classifiable in heading 5907 the heading does not include laminated fabrics.

The exclusion of laminated textile fabrics from heading 5907 has not gone unnoticed by the United States. At the Fourth Session of the Review Subcommittee of the Harmonized System Committee, the United States proposed to add the term "lamination" to the heading text for heading 5907 and Note 5(a) of Chapter 59. The proposal was rejected with the majority of the opposition expressing the belief that such a change in the text would change the scope of heading 5907 and that currently no laminated product clearly fell within heading 5907.

The United States, as a party to the International Convention on the Harmonized Commodity Description and Coding System, done at Brussels on 14 June 1983, is obligated by Article 3(1)(a)(ii) to "not modify the scope of the Sections, Chapters, headings or subheadings of the Harmonized System." Article 3(2) allows for textual adaptations, as necessary, to give effect to the Harmonized System in domestic law. For the United States to include a laminated fabric in heading 5907, especially after the rejection of the U.S. proposal, would be an enlargement of the scope of heading 5907 in violation of

Article 3(1)(a)(ii). Therefore, Customs does not believe the fabric at issue is classifiable in heading 5907 because it is a laminated fabric and thus, beyond the coverage of the heading.

Since heading 5907 has been eliminated from consideration, we must look to other possible classification headings. Heading 5903 provides for textile fabrics impregnated, coated, covered or laminated with plastics. However, Note 2(a)(1), Chapter 59, excludes from heading 5903 fabrics in which the impregnation, coating or covering cannot be seen with the naked eye. Further, the Explanatory Note for 5903 states in pertinent part:

The laminated fabric of this heading should not be confused with fabrics which are simply assembled in layers by means of a plastic adhesive. These fabrics, which have no plastics showing in cross-section, generally fall in Chapters 50 to 55.

The polyurethane adhesive used to laminate the fabrics and carbon spheres together is not visible to the naked eye when the fabric is examined. There is no sign of the plastic in the cross-section, though the carbon spheres are clearly visible. Since the plastic is not visible, the fabric is not classifiable in heading 5903.

Heading 5512 provides for woven fabrics with 85 percent or more synthetic staple fibers. The outer layer of the subject laminated fabric is 100 percent synthetic staple woven fabric and so classifiable within this heading.

Heading 6002 provides for knitted or crocheted fabrics other than pile fabrics (which are classified in heading 6001). The inner layer of the laminated fabric is 100 percent synthetic staple knit fabric and so classifiable within this heading.

Heading 3802 provides for, among other things, activated carbon. The activated carbon spheres are classifiable within this heading.

Since there are three competing provisions which each refer to part only of the materials making up the laminated fabric at issue, each heading must be regarded as equally specific. GRI 3(a). We must therefore classify the laminated fabric according to that material which gives it its essential character, if that is determinable. GRI 3(b).

There is no question that all three components, the knit and woven fabrics and the carbon, contribute significantly to the character and worth of the laminated fabric. However, the woven fabric has a value 2 1/2 times the value of the knit fabric and double the value of the activated carbon microspheres.

In determining essential character, various factors may be considered, such as bulk, value, quantity, weight and role. In this instance, each component is an integral part of the whole, but one component, the woven fabric, is significantly higher in value. Therefore, we believe the woven fabric is the component which imparts the essential character to the fabric.

HOLDING:

The laminated fabric at issue is classified in subheading 5512.99.0020, HTSUSA, as a woven fabric of synthetic fibers, containing 85 percent or more by weight of synthetic staple fibers, other, sheeting. The fabric falls within textile category 613 and is dutiable at 17 percent ad valorem.

The designated textile and apparel category may be subdivided into parts. If so, the 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 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 updated weekly and 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,

John Durant, Director
Commercial Rulings Division

Previous Ruling Next Ruling

See also: