CLA-2 CO:R:C:G 082644 CRS
Mr. Eugene Milosh
President
American Association of Exporters
and Importers
11 West 42nd Street
New York, NY 10036
RE: Coated Fabrics; Use of Magnification
Dear Mr. Milosh:
This is in reply to your letter dated August 4, 1988, in
which you requested clarification as to what constitutes a
visible coating for fabrics under the Harmonized Tariff Schedule
of the United States Annotated (HTSUSA). The initial inquiry was
not accompanied by a sample; however, two fabric swatches were
subsequently submitted by Saxton Hall Ltd., a member of the
American Association of Exporters and Importers.
FACTS:
You have asked for further clarification as to when Customs
will use magnification to determine whether an impregnation,
coating, covering or lamination is visible to the naked eye such
that garments made from such coated fabrics are classifiable in
heading 6210, HTSUSA.
The samples submitted in connection with this ruling request
are two swatches of 65 percent polyester, 35 percent cotton,
polyurethane-coated fabric. The two swatches of fabric appear to
be of different weight. Moreover, while both fabrics have been
sprayed with a coating of plastics, the nature of the coatings is
different. The "silver backed" coating applied to swatch "A" has
caused the underlying fabric to turn a dull, silver-grey color.
The application of the coating is uneven.
In contrast, a "silverized" coating has been applied to the
second sample, swatch "B." The coating is lustrous and also more
uniform than that applied to swatch "B." Nevertheless, there are
numerous spots which suggest a "broken bubble" effect or pitting
on the surface.
ISSUE:
1) Under what circumstances will Customs use magnification
to determine whether coatings are visible to the naked eye; 2)
whether Customs requires that coatings be uniform and that fibers
not be visible through the coating; and 3) whether the coatings
applied to the fabrics in question are visible to the naked eye
such that garments made therefrom are classifiable in heading
6210, HTSUSA.
LAW AND ANALYSIS:
Articles are classified under the HTSUSA in accordance with
the General Rules of Interpretation (GRIs). GRI 1 provides that
the classification of articles is determined according to the
terms of the headings and any relative section or chapter notes
and, provided the headings or notes do not otherwise require,
according to the remaining GRIs taken in order.
Note 2, Chapter 59, HTSUSA, states that heading 5903 applies
to all textile fabrics impregnated, coated, covered or laminated
with plastics other than those in which the impregnation, coating
or covering cannot be seen with the naked eye. No account is to
be taken of changes in color. Heading 6210, HTSUSA, applies to
garments made up of fabrics of heading 5903, as well as to
garments made up from fabrics of headings 5602, 5603, 5906 or
5907.
Using only the naked eye, however, it can be difficult to
distinguish impregnations, coatings, coverings or laminations,
from processing operations such as heat calendaring, water
repellency applications, etc. For example, heat calendaring is
a process which partially melts the fibers, thereby forming a
smooth plastic surface. Thus in order to distinguish heat
calendaring from a surface coating it is occasionally necessary
to examine the fabric under magnification to determine whether
heat deformation (melted fibers, which indicate that calendaring
has taken place) is present.
Customs has previously ruled that the naked eye test can be
augmented by magnification in certain circumstances. In a
memorandum dated March 14, 1988, to the Area Director of Customs,
New York Seaport, file 082994, we ruled that magnification is
allowable as an aid in determining whether what could be seen on
the surface of a fabric was a coating or merely the textile
itself.
Nevertheless, before using magnification, it is Customs'
practice to examine textiles with the naked eye alone in order to
ascertain whether a coating is present. If nothing resembling a
coating is observed, the fabric will not be considered coated for
classification purposes. Nevertheless, if 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.
You state that it is your understanding that fabric coatings
must be uniform and that fibers may not be visible through the
coating. This, however, is not Customs' position with regard to
what constitutes a coating visible to the naked eye. On the
contrary, we have ruled previously that coatings which were not
uniform were nevertheless classifiable in heading 6210. HRL
083127, dated November 8, 1989, held that a men's ski jacket was
coated and therefore classifiable in heading 6210. There it was
stated in pertinent part:
In this case, the jacket's plastic coating is not
uniform. Instead of forming a smooth, even layer, the
coating is broken by the presence of numerous small
pores. The existence of these openings permit one to
see through to the underlying fabric of the ski jacket.
Thus while Customs would require more than a mere spot coating,
there is no requirement that a coating be uniform or that a
fabric's underlying fibers be completely covered.
Neither of the two swatches in question, however, require
the use of magnification. The silver-backed coating of swatch
"A" has obscured the plain weave pattern which is readily
apparent on the non-coated side of the fabric. Whereas the gaps
between the weft and warp yarns are visible on the non-coated
side, on the coated side the plastics application has blurred or
obstructed these gaps so that in many instances it is difficult,
if not impossible, to distinguish warp from weft.
The same is true, to a greater degree, of the second fabric
in question. The silverized coating of swatch "B" imparts a
sheen to the fabric but does not completely conceal its
underlying blue color. The fact that it is possible to see
through the coating to the fabric below suggests that what the
eye perceives is not only a change in color but a layer of
coating over a layer of fabric.
Thus we consider that the coatings of both swatches "A" and
"B" are visible to the naked eye within the meaning of Note
2(a)(1), Chapter 59. Consequently, both fabrics are coated such
that they are classifiable within heading 5903, HTSUSA. Garments
made up from such fabrics would be classifiable, ceteris paribus,
in heading 6210.
HOLDING:
If the fabrics in question exceed 70 percent by weight of
plastics, they are both classifiable in subheading 5903.20.2000,
HTSUSA, under the provision for textile fabrics impregnated,
coated...with polyurethane, of man-made fibers, other, over 70
percent by weight of rubber or plastics, and dutiable at a rate
of 4.2 percent ad valorem. In this instance the fabrics would
not be subject to quota.
If the fabrics in question are less than 70 percent by
weight of plastics, they are classifiable in subheading
5903.20.2500, HTSUSA, under the provision for textile fabrics
impregnated,coated...with polyurethane, of man-made fibers,
other, other, and are dutiable at 8.5 percent ad valorem. The
quota category is 229.
The designated textile and apparel category may be
subdivided into parts. If so, visa and quota requirements
applicable to the subject merchandise may be affected. Since
part categories are the result of international bilateral
agreements which are subject to frequent renegotiations and
changes, to obtain the most current information available, we
suggest that you check, close to the time of shipment, the Status
Report on Current Import Quotas (Restraint Levels), an internal
issuance of the U.S. Customs Service, which is available for
inspection at your local Customs office.
Due to the changeable nature of the statistical annotation
(the ninth and tenth digits of the classification) and the
restraint (quota/visa) categories, you should contact your local
Customs office prior to importation of this merchandise to
determine the current status of any import restraints or
requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division