HQ 0088777 - Thermoplastic microdot coating is visible to the naked eye such that everfuse interlining fabrics are considered coated for the purposes of heading 5903. Modification of HRL 083993. - United States International Trade Commision Rulings

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HQ 088777

July 29, 1991

CLA-2 CO:R:C:T 088777 CRS

CATEGORY: CLASSIFICATION

TARIFF NO.: 5903.90.2500

Alice Wagner
C.J. Tower
128 Dearborn Street
Buffalo, New York 14207-3198

RE: Thermoplastic microdot coating is visible to the naked eye such that everfuse interlining fabrics are considered coated for the purposes of heading 5903. Modification of HRL 083993.

Dear Mrs. Wagner:

This in reply to your letter dated February 22, 1991, on behalf of Canada Haircloth Co., Inc., on the classification of coated fabrics from Canada under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Fabric samples were submitted.

FACTS:

You have submitted six sample fabrics colored white, natural, tan, grey, charcoal and black. The charcoal and black fabrics were previously ruled to be coated for tariff purposes. Headquarters Ruling Letter (HRL) 083993 dated June 20, 1989. However, this ruling held that the white, natural, tan and grey fabrics were not visible to the naked eye. Nevertheless, you state that Canada Hair Cloth's competitors have been importing similar fabrics under the provision for coated fabrics of heading 5903. Accordingly, you have asked that we reconsider HRL 083993.

The fabrics are manufactured in Canada. They are a blend of cotton and man-made fibers and are used in the manufacture of apparel. For the purposes of this ruling we assume that they are capable of providing a bond under the application of heat and pressure.

ISSUE:

Whether the plastic thermodot coating applied to the instant fabrics is visible to the naked eye such that the fabrics are classifiable in heading 5903, HTSUSA.

LAW AND ANALYSIS:

Heading 5903, HTSUSA, covers textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902. Note 2(a), Chapter 59, HTSUSA, provides that fabrics are considered coated for the purposes of heading 5903 whatever the weight and nature of the plastic material, except for those fabrics where the impregnation, coating or covering is not visible to the naked eye.

The Harmonized Commodity Description and Coding System, Explanatory Notes (EN), while not legally binding, nevertheless constitute the official interpretation of the Harmonized System at the international level. EN 59.03, 815-816, states in pertinent part that among the fabrics deemed coated for tariff purposes are:
textile fabrics which are spattered by spraying with visible particles of thermoplastic material and are capable of providing a bond to other fabrics under the application of heat and pressure.

The instant fabrics have been spattered with a thermoplastic material which we assume is capable of providing a bond to other fabrics. The thermoplastic material resembles small crystalline particles and is visible to the naked eye. HRL 086891 dated May 7, 1990.

Subheading Note 2, Section XI, HTSUSA, provides that products of Chapters 56 to 63 containing two or more textile are regarded as consisting wholly of that material which would be selected under Note 2, Section XI, HTSUSA. Note 2 provides that goods consisting of two or more materials are classifiable as if they consisted wholly of that material which predominates by weight over each other single textile material. The fabrics at issue are a blend of cotton and man-made fibers and are therefore classifiable at the subheading pursuant to Note 2, Section XI.

General Note 3(c)(vii), HTSUSA, provides in relevant part that goods imported into the Customs territory of the United States are eligible for treatment as goods originating in the territory of Canada if they are wholly obtained or produced in the territory of Canada. The instant fabrics are wholly produced in Canada and are therefore eligible for special tariff treatment under the United States-Canada Free-Trade Agreement.

HOLDING:

If the fabrics at issue are predominantly cotton by weight, they are classifiable in subheading 5903.90.1000, HTSUSA, under the provision for textile fabrics impregnated, coated, covered or laminated with plastics . . . ; other; of cotton. As goods originating in the territory of Canada they are dutiable at the rate of 3.7 percent ad valorem.

If the fabrics are predominantly man-made fibers by weight, they are classifiable in subheading 5903.90.2500, HTSUSA, under the provision for textile fabrics impregnated, coated, covered or laminated with plastics . . . ; other; of man-made fibers; other; other. As goods originating in the territory of Canada they are dutiable at the rate of 5.9 percent ad valorem and are subject to quota category 229.

Whether classifiable as of cotton or as of man-made fibers, the fabrics are not subject to quota/visa requirements.

In order to insure uniformity in Customs classification of this merchandise and eliminate uncertainty, we are modifying HRL 083993 to reflect the above classification effective with the date of this letter. However, if, after your review, you disagree with the legal basis for our decision, we invite you to submit any arguments you might have with respect to this matter for our review. Any submission you wish to make should be received within thirty days of the date of this letter.

This notice to you should be considered a modification of HRL 083993 under 19 CFR 177.9(d)(1). It is not to be applied retroactively to HRL 083993 (19 CFR 177.9(d)(2)) and will not, therefore, affect past transactions for the importation of your client's merchandise under that ruling. However, for the purposes of future transactions in merchandise of this type, HRL 083993 will not be valid precedent. We recognize that pending transactions may be adversely affected by this modification, in that current contracts for importations arriving at a port subsequent to this decision will be classified pursuant to it. If such a situation arises, your client may, at its discretion, notify this office and apply for relief from the binding effects of this decision as may be warranted by the circumstances. However, please be advised that in some instances involving import restraints, such relief may require separate approvals from other government agencies.

Sincerely,

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