CLA-2 CO:R:C:G 086130 CMR 846948, 846949
Mrs. Alice Wagner
C. J. Tower
Customs Brokers
128 Dearborn Street
Buffalo, New York 14207-3198
RE: Classification of certain coated fabrics
Dear Mrs. Wagner:
This ruling is in response to your letters of November 1, 1989,
on behalf of your client, Fabrene Inc., regarding the classification
of woven fabrics of polyethylene strip with various polyethylene
coatings.
FACTS:
Twelve samples have been submitted to Customs for consideration.
The fabric for all twelve samples is fabric of clear woven polyethy-
lene strips, under 5 mm in apparent width, coated or laminated on one
or both sides with various polyethylene plastic films. The samples
were submitted in two separate letters each dated November 1, 1989.
The first letter refers to nine samples.
Sample 1 is the woven fabric with one side coated with the
natural/clear polyethylene. In HRL 084744 of August 29, 1989, it was
determined that the natural/clear polyethylene coating was not
visible to the naked eye and therefore, this fabric was not
classifiable as a coated fabric of Chapter 59. It was classified
instead as if it were an uncoated fabric in subheading 5407.20.0000,
HTSUSA, which provides for woven fabrics of synthetic strip.
Samples 2 and 3 are the same fabric with one side coated. The
coating has had a blue concentrate colorant added in a ratio of one
part colortech blue concentrate to 200 parts of natural polyethylene
for sample 2 and a ratio of one part to 500 parts for sample 3.
-2-
Sample 4 is the fabric in tube form with one side coated with
the natural/clear coating on one side. This sample was the subject
of HRL 084348 of August 3, 1989 and was classified in the same
provision as sample 1 above, subheading 5407.20.0000, HTSUSA.
Samples 5, 6 and 7 are the tubed fabric in which the coating has
been colored with a red or pink color concentrate in an increasing
ratio of natural polyethylene to the color concentrate: #5, 500:1;
#6, 1000:1; and, #7, 2000:1.
Sample 8 is woven fabric of clear strips of polyethylene coated
with natural/clear polyethylene coating which has been physically
treated (embossed) to create an anti-skid surface.
Sample 9 is the woven fabric without any coating and is
submitted for reference purposes only.
The second letter refers to three samples.
Sample 1 is the one-side natural coated polyethylene fabric
which was classified in HRL 084744 in subheading 5407.20.0000,
HTSUSA.
Sample 2 is the woven fabric with one side coated with
polyethylene containing ampacet fire retardant additive. The ratio
of ampacet fire retardant additive to natural polyethylene is 1:8.
Sample 3 is the woven fabric with both sides coated with
polyethylene containing ampacet fire retardant additive. The ratio
of ampacet fire retardant additive to natural polyethylene is the
same as in sample 2.
ISSUE:
For classification purposes, are on the submitted samples
considered impregnated, coated, covered or laminated with plastics;
i.e, are the coatings visible to the naked eye?
LAW AND ANALYSIS:
Classification of products under the HTSUSA is governed by the
General Rules of Interpretation (GRIs). GRI 1 provides that
classification shall be determined according to the terms of the
headings and any relative section or chapter notes, and provided such
headings or notes do not otherwise require, according to [the
remaining GRIs taken in order].
The fabric at issue, without coating or without a visible
coating, is classified in subheading 5407.20.0000, HTSUSA, as a woven
fabric of synthetic strip not exceeding 5 mm in apparent width. See
HRL 084348 of August 3, 1989, and HRL 084744 of August 29, 1989.
-3-
Samples 1 from each letter (classified in HRL 084744) and
samples 4 (classified in HRL 084348) and 9 are not at issue. The
remaining fabric samples which have been coated with varying amounts
of color concentrate added or ampacet fire retardant present are at
issue with classification in heading 5903, HTSUSA, being sought. In
order to be classified in heading 5903, HTSUSA, as coated fabrics,
these samples must meet the requirements of Note 2, Chapter 59. One
of the requirements is that the plastic coating be visible to the
naked eye with no account being taken of any resulting change in
color.
Since color change must be disregarded in examining coated
fabrics to determine if the coating is visible to the naked eye, the
addition of a color concentrate, in whatever amount, should not
affect the determination that a fabric is or is not coated for
classification purposes. Customs has taken the position that the
coating is visible when it creates a change in the surface character
of the fabric. Having examined the submitted samples from your first
letter in a well-lighted room, we believe that the coatings on
samples 2, 3, 5, 6, and 7 fail to meet the visibility requirement of
Note 2, Chapter 59. The addition of the color concentrate merely
affects the color of the coating which we must disregard.
As for sample 8, the embossing treatment is visible if one looks
very closely at the fabric; however, the plastic coating itself is
not readily visible.
Samples 2 and 3 from the second letter which are coated on one
and both sides, respectively, appear to have smoother surface areas
on the coated sides. The underlying strips have been partially
obscured, especially in sample 3. Therefore, we consider the plastic
coatings on samples 2 and 3 to be visible because they have altered
the surface character of the fabric, albeit in sample 2 only
slightly.
Note 2(a), Chapter 59, excludes from classification in heading
5903 textile fabrics in which the fabric is either completely
embedded in plastics or entirely coated or covered on both sides with
plastics, provided the coating or covering meets the visibility test.
These fabrics are classifiable in Chapter 39. Since sample 3 is
coated on both sides with visible plastics, it is classifiable in
Chapter 39.
HOLDING:
Samples 2, 3, 5, 6, 7 and 8 from the first letter are
classifiable in subheading 5407.20.0000, HTSUSA, which provides for
woven fabrics of synthetic strip. The fabrics fall within textile
category 620 and are dutiable at 13.6 percent ad valorem as a product
of Canada.
-4-
Sample 2 from the second letter is classifiable in subheading
5903.90.2500, HTSUSA, as a textile fabric impregnated, coated,
covered or laminated with plastics, other, of man-made fibers. The
fabric falls within textile category 229 and is dutiable at 6.8
percent ad valorem as a product of Canada.
Sample 3 is classifiable in subheading 3921.90.1500, HTSUSA,
which provides for other plates, sheets, film, foil and strip of
plastics, other, combined with textile materials and weighing not
more than 1.492 kg/m squared: products with textile components in
which man-made fibers predominate by weight over any other single
textile fiber: other. The fabric falls within textile category 229
and is dutiable at 6.8 percent ad valorem as a product of Canada.
The designated textile and apparel category may be subdivided
into parts. If so, the 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 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
updated weekly and 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
6cc: Area Director, New York Seaport
1cc: CITA
1cc: Legal Reference Section
1cc: Phil Robins