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HQ 966508




March 17, 2004

CLA-2 RR:CR:TE 966508 BAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 5907.00.6000

Robert A. Shapiro
Barnes, Richardson & Colburn
1420 New York Avenue, N.W.
Suite 700
Washington, D.C. 20005

RE: Reconsideration of HQ 965343, dated July 30, 2002 and NY H81427, dated August 15, 2001; Classification of Blackout Drapery Fabric

Dear Mr. Shapiro:

This is in reply to your letter, dated May 27, 2003, on behalf of Rockland Industries, Inc., (Rockland) requesting reconsideration of Headquarters Ruling Letter (HQ) 965343, dated July 30, 2002, and New York Ruling Letter (NY) H81427, dated August 15, 2001, concerning the tariff classification of the Roc-Lon blackout drapery fabric (BDL). You provided us with a sample to assist us in our determination.

Upon review of the ruling, the Bureau of Customs and Border Protection (CBP) has determined that the merchandise was erroneously classified. This ruling letter revokes HQ 965343 dated July 30, 2002 and NY H81427, dated August 15, 2001 and sets forth the correct classification determination.

Pursuant to section 625(c), Tariff Act of 1930 (19 U.S. C. 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation of HQ 965343 and NY H81427, as described below, was published in the Customs Bulletin, Volume 38, Number 6, on February 4, 2004. CBP received no comments during the notice and comment period that closed on March 5, 2004.

FACTS:

In New York Ruling letter (NY) H81427, dated August 15, 2001, two samples, of Blackout and Budget Blackout Draperies, were classified in subheading 5903.90.2500, under the Harmonized Tariff Schedule of the United States (HTSUS). Subheading 5903.90.2500, HTSUSA, provides for man-made fiber textile fabrics impregnated, coated, covered or laminated with plastics not over 70 percent by weight of rubber or plastics.

In NY H81427, the merchandise was described as follows:

Two representative samples were submitted (white in color) differing mainly in their respective weights (thicknesses [sic]). The product Roc-lon®, is described in the literature as "Blackout" 3-pass and "Budget Blackout" 2-pass and identified on the samples as Textralon B/O F/R, and Budget B/O F/R, respectively. You described them in your correspondence as being of a "base cloth of 70% polyester/30% cotton construction and having a rubber like backing on the back with an acrylic coating and 100% cotton flocking.”

These drapery materials are available in a variety of colors and will be imported as roll goods having 54" (137 cm) widths. You indicated that similar materials are also available in 48" (122 cm), 54" (137 cm) and 110" (280 cm) widths. These materials, being used as drapery materials, according to your documentation, have the advantages of better light control, improved acoustical properties, holds up better after dry cleaning than other materials and resists cracking and peeling, etc.

It was noted, from observation, that there was a black colored layer between the textile surface or layer and white layer on the other surface. Your letter made mention of a "rubber like" backing and cotton flocking, neither of which were apparent from the samples.

On July 30, 2002, this office issued HQ 965343, in which we affirmed NY H81427 and classified the subject merchandise in subheading 5903.90.2500, HTSUSA, which provides for "Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902: Other: Of man-made fibers: Other: Other."

On May 27, 2003, you submitted a detailed description of the production process used to produce the Roc-Lon BDL and requested reconsideration of HQ 965343. Specifically, you noted that the Roc-Lon BDL is coated with a mixture of clay, titanium dioxide, carbon black, flame retardant, acrylic and textile flock. You provided us with a new sample of the Budget Blackout White/White. The new sample appears to be the same as the Budget Blackout at issue in HQ 965343. You argue that the Roc-Lon BDL is properly classifiable in heading 5907, HTSUSA. We note that the request for a classification determination is for the purpose of export of the blackout draperies. General Note 5, HTSUSA, indicates that the statistical reporting numbers for articles classified in Chapters 1 through 97 of the HTSUSA may be used in place of comparable Schedule B numbers on the Shipper’s Export Declaration.

ISSUE:

Is the subject blackout drapery fabric classified under heading 5903 which covers textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902; or under heading 5907, HTSUSA, as a textile fabric otherwise impregnated, coated or covered?

LAW AND ANALYSIS:

HEADING 5903, HTSUSA

While your initial correspondence did not address the nature of the plastic material, your submission of May 27, 2003 stated that the plastic used in the drapery fabric is in the form of a foam. Notably the manufacturer’s website, www.roc-lon.com also indicates that the plastic utilized is in the form of acrylic foam. The nature of the plastic, which was not at issue in HQ 965343 is a determining factor in analyzing the classification issue. Accordingly, we sent the new sample to the New York Customs and Border Protection Laboratory in order to determine whether the plastic was cellular or non-cellular. The Laboratory Report Number NY 20032178, states that the coating is composed of an acrylic type cellular plastic material which has cotton flocking fibers covering the exterior surface.

Classification of goods under the HTSUS is governed by the General Rules of Interpretation (“GRIs”). GRI 1 provides that classification shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. Since the blackout drapery is composed of a textile and plastic combination we focus upon Chapter 39 which covers plastics and articles thereof and Chapter 59 which covers impregnated, coated, covered or laminated textile fabrics. We begin our analysis with a review of Section VII which encompasses Chapter 39. Section VII deals with plastics and articles thereof, rubber and articles thereof. There are no applicable Section notes. Next we review Chapter 39 (plastics and articles thereof). Chapter Note 2(m) states that the chapter does not cover goods of Section XI (textiles and textile articles). The Explanatory Notes to the Harmonized Commodity Description and Coding System (“ENs”), which represent the official interpretation of the tariff at the international level, facilitate the classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI. The Explanatory Notes to Chapter 39 state that the classification of plastic and textile combinations is essentially governed by Note 1(h) to Section XI, Note 3 to Chapter 56 and Note 2 to Chapter 59.

Note 1(h) to Section XI (textiles and textile articles) states that the section does not cover woven, knitted or crocheted fabrics, felt or nonwovens, impregnated, coated, covered or laminated with plastics, or articles thereof, of Chapter 39. Thus it is necessary to determine what plastic covered or laminated fabrics are covered by Chapter 39.

The ENs to Chapter 39 state that the following plastic and textile combination products are covered by Chapter 39:

(a) Felt impregnated, coated, covered or laminated with plastics, containing 50% or less by weight of textile material or felt completely embedded in plastics; (b) Textile fabrics and nonwovens, either completely embedded in plastics or entirely coated or covered on both sides with such material, provided that such coating or covering can be seen with the naked eye with no account being taken of any resulting change of colour; (c) Textile fabrics, impregnated, coated, covered or laminated with plastics, which cannot, without fracturing, be bent manually around a cylinder of a diameter of 7 mm, at a temperature between 15°C and 30° C; (d) Plates, sheets and strip of cellular plastics combined with textile fabrics, felt or nonwovens, where the textile is present merely for reinforcing purposes.

In this respect unfigured, unbleached, bleached or uniformly dyed textile fabrics, when applied to one face only of these plates, sheets or strip, are regarded as serving merely for reinforcing purposes. Figured, printed or more elaborately worked textiles (e.g., by raising) and special products, are regarded as having a function beyond that of reinforcement.

Although the acrylic component of the drapery fabric is cellular, it does not squarely meet the description in (d) of the Chapter 39 ENs cited above, because the plastic is covered with another material (the flock) and based on the analysis which follows, the Bureau of Customs and Border Protection (CBP) believes it is properly classified as a fabric of 5907, and as such is excluded from Chapter 39, by virtue of Note 2(m), Chapter 39. See HQ 961390, dated April 19, 2001.

We note that Note 1(h) does not preclude the classification of the blackout drapery in Section XI.

Next, the governing notes direct us to Note 3 to Chapter 56. Note 3 states that Headings 5602 and 5603 cover felts and nonwovens, respectively, that are coated or laminated with plastics. Since the material at issue does not involve felt or nonwoven material, Note 3, Chapter 56, is inapplicable.

Note 2(a) to Chapter 59 states that Heading 5903, HTSUS, applies to textile fabrics, impregnated, coated, covered, or laminated with plastics, whatever the weight per square meter and whatever the nature of the plastic material (compact or cellular) other than the following six exceptions:

(1) 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 in color; (2) Products which cannot, without fracturing, be bent manually around a cylinder of a diameter of 7 mm, at a temperature between 15°C and 30°C (usually Chapter 39); (3) Products in which the textile fabric is either completely embedded in plastics or entirely coated or covered on both sides with such material, provided that such coating or covering can be seen with the naked eye with no account being taken of any resulting change of color (chapter 39); (4) Fabrics partially coated or partially covered with plastics and bearing designs resulting from these treatments (usually Chapters 50 to 55, 58 or 60); (5) Plates, sheets or strip of cellular plastics, combined with textile fabric, where the textile fabric is merely present for reinforcing purposes (Chapter 39); or (6) Textile products of heading 5811.

The subject material seems to be described, at least in part, in exemption 5 above. We note however that the nature of the material (woven fabric, cellular plastics, flock) is not described in Note 2(a) above. Although the woven drapery fabric is combined with a sheet of cellular plastics, the sheet is covered with flock. The flock serves as part of the covering or coating material of the finished fabric.

Heading 5907 covers textile fabrics that have been impregnated, coated or covered, with materials other than plastics or rubber, provided the impregnation, coating or covering can be seen with the naked eye.

The ENs to Heading 5907, HTSUS, specifically lists flocked fabrics stating:

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 materials such as:

(1) Textile flock or dust to produce imitation suedes.

The blackout drapery at issue is constructed of a woven fabric, covered with a cellular plastic, which is itself covered on the outside surface with cotton flocking fibers.

The blackout drapery fabric therefore meets the description of a textile fabric otherwise impregnated, covered or coated of Heading 5907, HTSUS. Accordingly, the blackout drapery fabric is classified as a fabric under Heading 5907, HTSUS. We note that as the textile and plastic combination is found to be classifiable in Chapter 59, it is excluded from classification in Chapter 39.

This ruling is consistent with other rulings in which “three flocked” blackout liner materials for use in the manufacture of draperies have been classified in heading 5907, HTSUSA, and in which a foamed PVC jacket shell covered with textile flock was determined to be of a fabric of 5907, HTSUSA. HQ 961390, April 19, 2001; NY G88375, dated March 27, 2001.

The final step in the analysis requires a determination as to whether the blackout drapery fabric is appropriately classified under 5907.00.60, HTSUSA, which provides for “Textile fabrics otherwise impregnated, coated or coveredOf man-made fibers” or under subheading 5907.00.80, HTSUSA, which provides for “Textile fabrics otherwise impregnated, coated or coveredOther”.

Subheading Note 2(A) to Section XI of the HTSUSA states the following:

Products of chapters 56 to 63 containing two or more textile materials are to be regarded as consisting wholly of that textile material which would be selected under note 2 to this section for the classification of a product of chapters 50 to 55 or of heading 5809 consisting of the same textile materials.

Subheading Note 2(B) to Section XI of the HTSUSA states in relevant part that for application of Note 2(A):

(a) Where appropriate, only the part which determines the classification under general interpretative rule 3 shall be taken into account;

In the instant case, it is the fabric component of the blackout drapery that determines its classification, not the coating or the flocking. Accordingly, in determining the appropriate subheading we evaluate only the fabric component.

Note 2(A) to Section XI reads in relevant part:

Goods classifiable in chapters 50 to 55 or in heading 5809 or 5902 and a mixture of two or more textile materials are to be classified as if consisting wholly of that one textile material which predominates by weight over each other single textile material.

As the textile component of the blackout drapery is 70 percent polyester and 30 percent cotton, it is properly classifiable in subheading 5907.00.6000, HTSUSA, which provides for “Textile fabrics otherwise impregnated, coated or covered; painted canvas being theatrical scenery, studio back-cloths or the like: Other: Of man-made fibers.”

HOLDING:

HQ 965343, dated July 30, 2002 and NY H81427, dated August 15, 2001are hereby revoked. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

The blackout drapery fabric is classifiable in subheading 5907.00.6000, HTSUS, which provides for “Textile fabrics otherwise impregnated, coated or covered; painted canvas being theatrical scenery, studio back-cloths or the like: Other: Of man-made fibers.” HQ 965343, dated July 30, 2002 and NY H81427, dated August 15, 2001 are hereby revoked.

Sincerely,

Myles B. Harmon, Director

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