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HQ 954068




May 14, 1993

CLA-2 CO:R:C:T 954068 CAB

CATEGORY: CLASSIFICATION

TARIFF NO.: 5911.10.2000

Ms. Leanna Lopez
KIU Kintetsu Intermodal (U.S.A) Inc.
711 Glasgow Avenue
Inglewood, CA 90301

RE: Modification of Headquarters Ruling Letter 086337, dated April 19, 1990; Heading 5911; Heading 5407

Dear Ms. Lopez:

This letter is in reference to Headquarters Ruling Letter (HRL) 086337, dated April 19, 1991, issued to you from this office, regarding various EMI/ESD shielded fabric produced in Japan. After further review, Customs has modified its position on the classification of Sample C which was one of the shielded fabrics at issue in HRL 086337. Accordingly, this ruling modifies HRL 086337 with regards to Sample C.

FACTS:

In HRL 086337, Customs stated that Sample C was made of Sheer Shield (TM) fabric. Sheer Shield was described as a woven mesh of uniform and extremely fine polyester monofilaments that was plated with copper and then coated with an acrylic resin. The purpose of the acrylic resin was to reduce glare. Customs concluded that Sample C was classifiable in subheading 5407.60.2025, HTSUSA, which is the provision for woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404.

ISSUE:

Whether Sample C is properly classifiable under Heading 5407, HTSUSA or Heading 5911, HTSUSA?

LAW AND ANALYSIS:

Classification of goods 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. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI's, taken in order.

Heading 5911, HTSUSA, is the provision for textile products and articles, for technical uses, specified in note 7 to this chapter.

Note 7 to Chapter 59, states, in pertinent part:

(a) Textile products in the piece, cut to length or simply cut to rectangular (including square) shape (other than those having the character of the products of heading 5908 to 5910), the following only:

(i) Textile fabrics, felt and felt-lined woven fabrics, coated, covered or laminated with rubber, leather or other material, of a kind used for card clothing, and similar fabrics of a kind used for other technical purposes;

(v) Textile fabric reinforced with metal, of a kind used for technical purposes

Note 7(a)(v) to Chapter 59 expressly provides for textile fabrics that are reinforced with metal, of a kind used for technical purposes. Although Sample C is electroplated with metallic copper, the metal component is not present to strengthen or support the fabric. As the metallic copper is not intended to support the textile fabric, Sample C is not classifiable under Heading 5911, HTSUSA, pursuant to Note 7(a)(v) to Chapter 59.

In your initial submission, you proposed that Sample C be classified under Heading 5911, HTSUSA, based on Note 7(a)(1) to Chapter 59. To substantiate your classification claim, you submitted written documentation which stated that the principal function of Sample C was to provide glare protection and shield the computer user from electromagnetic radiation.

As stated above, Note 7(a)(1) to Chapter 59 specifically provides for textile fabrics, felt and felt-lined woven fabrics, coated, covered or laminated with rubber, leather or other material, of a kind used for card clothing, and similar fabrics of a kind used for other technical purposes. Sample C is constructed of a textile fabric and is coated with a black acrylic resin. However, to be properly classifiable under Heading 5911, HTSUSA, based on Note 7(a)(1) to Chapter, Sample C must also fit into a class or kind of merchandise used for technical purposes.

Fabric very similar in composition to the instant material was used in the construction of a video display screen at issue in HRL 083200, dated September 19, 1989, and HRL 085425, dated December 13, 1989. In both cases, the primary function of the screens therein issue was to shield the computer user from the potentially harmful effects of glare, static electricity, and electromagnetic transmissions emitted from the computer terminal. Customs classified both of the subject computer shields under Heading 5911, HTSUSA, as articles used for technical purposes. Since the primary and intended purpose of the computer screen was to protect the user from the negative impact of glare, static electricity, and electromagnetic transmissions given off from a computer, Customs is of the opinion that such a function is technical in nature, and that the goods therein fit into a class or kind of merchandise used for technical purposes. It is necessary for Customs to emphasize this fact since the prior two rulings omitted to stress that the primary and intended aim of the computer screens at issue was a technical function. When examining the instant fabric in accordance with the rationale behind HRL 083200 and HRL 085425, and noting that the primary and intended purpose for the subject fabric is identical to the computer screens at issue in the cited rulings, it is clear that the fabric also fits into a class or kind of merchandise used for technical purposes. Thus, the instant fabric is also classifiable under Heading 5911, HTSUSA.

HRL 086337 erroneously stipulated that in order for Sample C to be classifiable under Heading 5911, HTSUSA, it had to be coated in accordance with Note 5 to Chapter 59, HTSUSA. Note 5 to Chapter 59, provides, in relevant 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... To properly comply with Note 7(a)(1) to Chapter 59, the instant material must be coated, however,the material does not have to be coated pursuant to Note 5 to Chapter 59. Note 5 to Chapter 59 specifically applies to goods that are potentially classifiable under Heading 5907, and not goods classifiable under Heading 5911, HTSUSA. As long as the goods are coated, as is the case with Sample C, there is no requirement in the nomenclature pertaining to Heading 5911, HTSUSA, that mandates that the coating on the goods be seen with the naked eye of the viewer. Heading 5407, HTSUSA, provides for woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404. As the instant material is properly classifiable under Heading 5911, HTSUSA, there is no need to discuss its classification under Heading 5407, HTSUSA.

HOLDING:

Based on the foregoing, the merchandise in question is classifiable under subheading 5911.10.2000, HTSUSA, which is the provision for textile fabrics, coated, covered or laminated with rubber, leather or other material, of a kind used for card clothing, and similar fabrics of a kind used for other technical purposes. The applicable rate of duty is 7.5 percent ad valorem.

This notice to you should be considered a modification of HRL 086337 under 19 CFR 177.9(d)(1).

Sincerely,

John Durant, Director
Commercial Rulings Division

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