HQ 0088261 - Classification Certain Window Covering Fabric--Whether It Is Coated or Covered With Aluminum for Tariff Purposes - United States International Trade Commision Rulings

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HQ 088261

August 16, 1991

CLA-2 CO:R:C:T 088261 PR

CATEGORY: CLASSIFICATION

TARIFF NO.: 5407.60.20

Roger L. Hiatt, Esquire
Miller & Steuart
2320 Commerce Tower
911 Main Street
Kansas City, Missouri 64105

RE: Classification Certain Window Covering Fabric--Whether It Is Coated or Covered With Aluminum for Tariff Purposes

Dear Mr. Hiatt:

This is in reply to your submissions on behalf of Verosol USA, Inc., concerning the classification of certain metalized fabric. Our ruling on the matter follows.

FACTS:

The merchandise, produced in Holland, consists of a woven polyester textile fabric which as been heat set (for stabilization) prior to a micro-thin deposit of metallic aluminum being applied to one surface. The material is used to make pleated window shades which have certain thermal and reflective properties not present in fabrics that have not been metalized.

A great deal of information has been submitted showing the utilization of the metalized fabrics, their manufacture and technical requirements, and their energy saving capabilities, in addition to reasons why the merchandise should be considered to be impregnated, coated or covered for tariff purposes.

ISSUE:

The issue presented is whether the instant merchandise is classifiable under the provision for woven fabric of man-made fibers, in subheading 5407.60.20, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), or under the provision for other impregnated, coated, or covered fabrics, in subheading 5907.00.9090, HTSUSA.

LAW AND ANALYSIS:

Subheading 5907.00.9090 provides for textile fabrics impregnated, coated, or covered with material other than plastics or rubber. Note 5(a) to Chapter 59, HTSUSA, provides that Heading 5907 does not apply to "Fabrics in which the impregnation, coating or covering cannot be seen with the naked eye.

There is no indication in the Harmonized Commodity Description and Coding System, Explanatory Notes, which is the official interpretation of the HTSUSA at the international level, on how the "naked eye" test should be applied. The Customs Service has taken the position that, in the absence of legislative intent, the plain meaning of the statutory language will be given effect. Nothing in the abundance of information that has been submitted to this office is sufficiently persuasive to cause Customs to abandon this position.

Accordingly, if what the unaided eye perceives when viewing a fabric with an application of a foreign material (in this case aluminum) is nothing more than what would be perceived if a dye had been applied to the fabric, then the fabric is not coated for purposes of classification in Chapter 59. If the unaided eye perceives the existence of an added substance, then that substance qualifies as a "coating or covering" within the purview of Note 2, provided that the added material is sufficiently spread over the entire surface of the fabric. If the unaided eye is able to detect the presence of something on the surface of the fabric, but it is unclear whether that which is seen is a coating, then Customs may utilize magnification to determine if what the eye has detected is the presence of an added material. As stated in HRL 082644, dated March 2, 1990:

[I]f a visual examination suggests the presence of a coating, it is within Customs' discretion to examine the fabric under magnification to confirm or refute the initial observation.

A change in the reflectivity, sheen, etc., of a fabric is considered to be the perception of the effect of a plastics application and not a perception of the plastics itself.

We have closely examined the submitted swatches and cannot visibly distinguish (with the naked eye) the presence of the aluminum or any indication that aluminum has been added to the fabric. While the aluminum changes the color and the shine of the surface of the fabric, it causes no other visible change. Even the submitted photomicrographs, one of which shows a portion of the fabric at 100X magnification, fail to reveal any visual evidence of aluminum having been added to the fabric. If the aluminum cannot be visually discerned at 100X magnification, obviously it cannot be seen by the unaided (naked) eye. Accordingly, the fabric does not qualify for classification in Heading 5907 and must be classified under a provision for synthetic filament fabrics in Heading 5407.

HOLDING:

The merchandise is classifiable under the provision for other fabrics of synthetic filament yarns weighing not over 170 grams per square meter, in subheading 5407.60.20xx, HTSUSA. The statistical suffix (last two numbers in the classification) is dependent on the condition of the fabric at the time of importation--plain, dyed, or printed. In any event, as a product of Holland, the applicable rate of duty in 1991 is 17 percent ad valorem.

Sincerely,

John Durant, Director

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