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HQ 956024


March 31, 1994

CLA-2 CO:R:C:T 956024 SK

CATEGORY: CLASSIFICATION

TARIFF NO.: 5407.60.2025; 5407.60.2035

District Director
U.S. Customs Service
200 St. Paul Place, 28th floor
Baltimore, MD 21202

RE: Decision on Application for Further Review of Protest No. 1303- 94-100035 classification of fabrics coated with melamine resin; visible to the naked eye test of Chapter Note 2(a) to Chapter 59, HTSUSA; 5407.60.2025 and 5407.60.2035, HTSUSA; polyester sailcloth; HRL 955031 (3/30/94); lead protest concerning this merchandise.

Dear Sir:

This is a decision on application for further review of a protest timely filed on January 13, 1994, by David Kuhl on behalf of Sati/Performance Textiles, Inc., against your decision regarding the classification of coated sailcloth from Spain. At issue is the proper classification of several weights of coated fabric made of woven polyester with a coating of melamine resin. Three entries of this merchandise were made at the port of Baltimore on June 23, 1993, August 25, 1993, and August 31, 1993. The first entry was liquidated on October 15, 1993. The latter two on November 26, 1993.

We direct your attention to Headquarters Ruling Letter (HRL) 955031, dated March 30, 1994, in which this office denied in full the protest filed on behalf of Sati/Performance Textile, Inc., by the law firm of Holland & Knight. That protest, referenced 1303- 93-100166, is designated the "lead" protest. As this protest deals with the same merchandise the subject of HRL 955031, the same importer, and the same facts and legal arguments have been presented to Customs in conjunction with this protest, the analysis and holding in HRL 955031 is deemed controlling.

FACTS:

The fabrics the subject of this protest were imported in several different weights, but all are described by the protestant as "All-Purpose Polyester Color Sail-Cloth Fabric Coated with Melamine Resin." The following descriptions were provided in the protestant's statement of facts, which was submitted to this office as an attachment to Protest 1303-93-100166.

* All- Purpose Four Ounce Polyester Color Sail-Cloth Fabric Coated with Melamine Resin."
(Style C-5170)
Finished Weight: 4.0 ounces per square yard; Polyester Fiber: 3.30 ounces per square yard; Plastic Coating: 0.70 ounces per square yard; Threads per Square Inch in Warp: 108;
Threads per Square Inch in Filling: 63;
Warp: 167 decitex;
Weft: 330 decitex.

* All- Purpose Five Ounce Polyester Color Sail-Cloth Fabric Coated with Melamine Resin.
(Style C-5210)
Finished Weight: 5 ounces per square yard; Polyester Fiber: 4.25 ounces per square yard; Plastic Coating: .75 ounces per square yard. Threads per Square Inch in Warp: 132
Threads per Square Inch in Filling: 68
Warp: 167 decitex
Weft: 330 decitex

* All- Purpose Six Ounce Polyester Color Sail-Cloth Fabric Coated with Melamine Resin.
Finished Weight: 6.0 ounces per square yard; Polyester Fiber: ?
Plastic Coating: ?
Threads per Square Inch in Warp: 117;
Threads per Square Inch in Filling: 48;
Warp: 280 decitex;
Weft: 550 decitex.

* All-Purpose Seven Ounce Polyester Color Sail-Cloth Fabric Coated with Melamine Resin.
Finished Weight: 7.0 ounces per square yard; Polyester Fiber: ?
Plastic Coating: ?
Threads per Square Inch in Warp: 117;
Threads per Square Inch in Filling: 46;
Warp: 280 decitex;
Weft: 660 decitex.

* All-Purpose Eight Ounce Polyester Color Sail-Cloth Fabric Coated with Melamine Resin.
Finished Weight: 8.0 ounces per square yard; Polyester Fiber: ?
Plastic Coating: ?
Threads per Square Inch in Warp: 132;
Threads per Square Inch in Filling: 41;
Warp: 280 decitex;
Weft: 830 decitex.

* All-Purpose Nine Ounce Polyester Color Sail-Cloth Fabric Coated with Melamine Resin.
Finished Weight: 9.0 ounces per square yard; Polyester Fiber: ?
Plastic Coating: ?
Threads per Square Inch in Warp: 132;
Threads per Square Inch in Filling: 41;
Warp: 330 decitex;
Weft: 830 decitex.

We received samples of each fabric weight in its finished, coated form. Also, protestant submitted samples of the 4, 6, 7, 8 and 9 ounce fabrics in their uncoated states for comparison purposes. Protestant states that no other uncoated samples are available for submission to this office at this time.

The subject fabric is imported in continuous lengths and is used to manufacture sails for boats and wings for light-weight aircraft. The yarn is twisted and woven at the Sociedad Anonima Tejidos Industriales (SATI) plant in Barcelona, Spain. The fabric is heat set at approximately 210 degrees celsius. The material is then dipped or run through a resin bath and pressed between squeezing rollers to remove excess resin. This is followed by drying and curing of the resin. The material is then calendared to achieve flatness and evenness.

We note that this office has been presented with conflicting information regarding the weight differentials between the coated and uncoated fabrics. Specifically, we direct you to Exhibit G in which Mr, Gutierrez, Technical Fabric Product Manager at SATI, states that the weight of the fabric, after coating, is increased about 4% for fabrics with a medium firm finish and 9% for fabrics with a firm finish. These figures do not match those provided by Mr. Himmelberg, listed supra, which indicate a much greater weight increase after coating. While this information is not germane to classification in this instance, it is some indication that the accuracy of the information supplied to this office may be in doubt.

There are also discrepancies with regard to what type of coating substance is used on this fabric. The manufacturer's affidavit states that a melamine resin and fatty softeners are used for a medium firm finish and melamine resin, fatty softeners and polyester resins for a firm finish. The protestant states only that melamine is used as the coating. The importer claims a mixture of polyester and melamine is used and, in Exhibit F, a Mr. Tindle states in his sworn affidavit that, "[B]ased on my years of experience in this industry, it is apparent to me, after viewing this fabric with my own eyes, that the sample has been coated with some sort of silicate or polyeurethane (sic) coating." Again, this information is not determinative of classification so long as some form of melamine coating is used on the fabric.

Three entries of the subject fabric were made at the Customs port of Baltimore between the dates of June 23, 1993, and August 31, 1993, and were classified either as uncoated fabrics under subheading 5407.60.2025, HTSUSA, or under subheading 5407.60.2035, HTSUSA, depending on the weight of the fabric. As mentioned supra, all three of these entries have been liquidated.

Protestant states that this merchandise is properly classified under subheading 5903.20.2500, HTSUSA, as "textile fabrics, impregnated, coated, covered or laminated with plastics ... ." Note 2(a)(1) to Chapter 59, HTSUSA, states that heading 5903 will govern the classification of a coated fabric so long as the impregnation, coating or covering can be seen with the naked eye with no account being taken of a resulting change in color.

Customs' position is that classification of this fabric is proper under subheading 5407.60.2025, HTSUSA, as uncoated fabric. This classification is predicated on the District Director's position that the clear plastic coating on the imported fabric is not visible to the naked eye as required by Note 2(a)(1) to Chapter 59, HTSUSA.

ISSUE:

Whether the clear plastic coating on the fabric at issue is visible to the naked eye so as to warrant classification in Chapter 59 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes, taken in order. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI's.

Chapter Note 2(a)(1) to Chapter 59 of the tariff schedule states that heading 5903 applies to textile fabrics impregnated, coated, covered or laminated with plastics other than fabrics in which the impregnation, coating, covering or lamination cannot be seen with the naked eye. No account is to be taken of any resulting change in color.

The sole criterion upon which Customs is to determine whether fabric is coated for purposes of classification under heading 5903, HTSUSA, is based on visibility: fabric is classifiable in Chapter 59 if the plastic coating is visible to the naked eye. This standard does not allow the examiner to take the "effects" of plastic into account. Plastic coating will often result in a change of color, increase a fabric's stiffness or lend a sheen to fabric; these are factors which, while indicative of the presence of plastic, may not be taken into account in determining whether the plastic itself is visible to the naked eye. The prohibition against taking a change of color into account is explicitly set forth in Chapter Note 2(a)(1). Stiffness is not a reliable indicator of coating because it may dissipate or entirely disappear over time and it is detected more by touch than by visual inspection. Sheen may be imparted to a fabric by the application of coating, but this too is an unreliable indicator of the presence of coating inasmuch as it may be imparted to fabric by means of heat calendaring and other methods of treating fabric which do not involve the application of coating.

In this instance, protestant has submitted the sworn affidavits of four individuals who are familiar with this type of fabric (see Exhibits C, D, E and F). All four describe the fabric in similar terms and all refer to the coated fabrics' "smoothness" as one of their basis' for claiming that the coating is visible. Three of the affiants mention that the "intersections" of the fabrics' weave has been filled with resin, and two mention a "streaking" effect created by the coating as visible evidence of its presence. One affiant states that the coating is visible based on the fact that the edges of uncoated samples will fray, whereas the edges of the coated sample do not.
With regard to the affiants' first contention, that the coating on the subject fabric is visible to the naked eye based on the fact that the coating of resin has made the fabric "smooth," we do not agree. A close inspection of the various fabric weights in their coated states does not reveal an inordinate amount of smoothness, and certainly not to the extent that the underlying weave has been blurred or obscured in any manner. Comparison of the coated samples with the uncoated samples yields the same finding: the weaves of both coated and uncoated samples appear equally distinct, even under magnification.

As stated above, three of the affiants state that the intersections of the subject fabric have been filled with resin. While this may be true, or at least melamine resin covers the intersections, the coating in the interstices is still not visible to the naked eye. In the past, Customs has looked to whether coating had filled or draped across a looser fabric's interstices as a possible means of determining whether coating was visible. In the instant case, however, the weave of these fabrics are relatively tight and does not permit the naked eye to detect the presence of coating in their intersections.

The "streaking" effect cited as a visible sign of the resin coating on the subject fabrics is not apparent to the examiners in this office. We are unable to detect any streaking, with or without magnification.

Lastly, the protestant states that "the coating is visible to the naked eye because the threads at the edges of the fabric have bonded together as a result of the application of the coating." The presence of loose, frayed edges on the uncoated sample does not serve to render the resin on the coated sample visible. We stress that the standard by which Customs must abide states that the coating must be visible; we can not base classification of fabric within Chapter 59 of the tariff schedule on whether uncoated fabric counterparts have frayed edges.

As the plastic coating is not visible to the naked eye, this fabric is precluded from classification under heading 5903, HTSUSA. We further note that protestant's assertion that the subject merchandise is properly classifiable under subheading 5903.20.2500, HTSUSA, is incorrect because that subheading provides for fabrics that are visibly coated with polyurethane. Classification of the subject merchandise is proper under heading 5407, HTSUSA, which provides for, in pertinent part, woven fabrics of synthetic filament yarn.

HOLDING:

The fabrics at issue which weigh less than 170 grams per square meter (the 3, 4 and 5 ounce fabrics) are classifiable under subheading 5407.60.9925, HTSUSA, (the 1994 corollary to 5407.60.2025, HTSUSA), under the provision for "woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404: other woven fabrics, containing 85 percent or more by weight of non-textured polyester filaments: other: other... dyed: weighing not more than 170 grams per square meter: flat fabrics...," dutiable at a rate of 17 percent ad valorem. The textile quota category is 619.

The fabrics at issue which weigh more than 170 grams per square meter (the 6, 7, 8 and 9 ounce fabrics) are classifiable under subheading 5407.60.9935, HTSUSA, (the 1994 corollary to 5407.60.2035, HTSUSA), under the provision for "woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404: other woven fabrics, containing 85 percent or more by weight of non-textured polyester filaments: other: other... dyed: weighing more than 170 grams per square meter," dutiable at a rate of 17 percent ad valorem. The textile quota category is 620.

As the rate of duty under the classification indicated above is the same as the rate under which the subject merchandise was entered, you are instructed to deny the protest in full. A copy of this decision should be furnished to the protestant with the Form 19 notice of action.

Sincerely,

John Durant, Director
Commercial Rulings Division

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