CLA-2 CO:R:C:T 089548 CRS
District Director
U.S. Customs Service
Patrick V. McNamara Building
477 Michigan Avenue
Detroit, MI 48266
RE: Application for further review of protest no. 3805-0-000017;
automotive upholstery fabric treated with acrylic plastic where
plastic is visible to the naked eye is considered coated for
tariff purposes.
Dear Mr. Morandini:
This is in reply to an application for further review of
Protest No. 3805-0-000017 dated May 31, 1990, filed by Cortez
Customhouse Brokerage Co. on behalf of Courtaulds Automotive
Products. Additional submissions were submitted on behalf of
Courtaulds by Tompkins & Davidson in letters dated August 29,
1990, and December 26, 1990. Samples were provided.
FACTS:
The merchandise in question is automotive upholstery fabric,
style no. TZ-147, style name "Manchester." The fabric is made
from 100 percent polyester, twill weave, man-made fiber, and is
coated on one side with a fire retardant, acrylic plastic.
Protestant states that the total weight of the fabric in its
coated condition is approximately 473 30 grams per square meter
while the coating weighs approximately 100-110 grams per square
meter.
The style TZ-147 fabric has been imported in a range of
colors, of which four samples were submitted with the protest.
In addition, five other samples of the fabric obtained by the
port of entry have been examined. It should be noted that the
amount of coating applied differs in some instances as between
the submitted samples and the samples obtained from the port of
entry. For example, the dark red fabric sample submitted with
the protest is heavily coated such that the coating has in large
measure obscured the underlying fabric. In contrast, the dark
red fabric sample obtained by the port of entry has a much
lighter coating which has matted the fabric and blurred the
definition of the weave.
The style TZ-147 colors are dark grey, new grey, beige
cognac, dark red and medium blue. The fabrics are manufactured
in and imported from England.
ISSUE:
The issue presented is whether the coating applied to the
fabric in question is visible to the naked eye such that the
fabric is classifiable under the provision for coated fabrics of
heading 5903, Harmonized Tariff Schedule of the United States
Annotated (HTSUSA).
LAW AND ANALYSIS:
Heading 5903, HTSUSA, provides for textile fabrics coated
with plastics. Note 2(a), Chapter 59, HTSUSA, limits the scope
of heading 5903 to those fabrics in which the coating can be seen
with the naked eye. The note provides further that "no account
is to be taken of any resulting change in color."
We are advised by the National Import Specialist that the
fabrics in question should not be considered coated for tariff
purposes since what the naked eye perceives is not the presence
but rather the effect of plastics. However, Note 2 requires only
that coatings be visible to the naked eye, except for those
coatings which are visible only as a result of a change in color.
There is no mention of "effect" in the exclusionary language of
the legal note, other than indirectly, viz., the reference to
color.
Consideration of "effect" as opposed to "presence" was
introduced in Headquarters Ruling Letter (HRL) 084165 dated June
26, 1989, where we stated with regard to Note 2:
In regard to this last criterion, Customs is of the
view that no account should be taken of any resulting
change in only shine, reflectivity, dullness, or other
property which causes the viewer to see the effect
rather than the presence of plastics material (emphasis
added).
Id. at 2.
We continue to adhere to this view. Nevertheless, in this
instance, the coating has visibly and significantly affected the
fabric by blurring or matting its surface. The plastic coating
is particularly visible on the individual fibers to which it has
adhered. What the eye perceives therefore is not the effect, but
indeed the presence, of a plastics material.
It has also been suggested, based on the Harmonized
Commodity Description and Coding System, Explanatory Notes (EN),
specifically EN 59.03, that fabrics coated with fire retardant
acrylic coatings, such as those at issue, are not classifiable in
heading 5903. EN 59.03, 816, provides in pertinent part that:
Textile fabrics in which the impregnation, coating
or covering cannot be seen with the naked eye or can be
seen only by reason of a change in colour usually fall
in Chapters 50 to 55, 58 or 60. Examples of such
fabrics are those impregnated with substances designed
solely to render them crease-proof, moth-proof,
unshrinkable or waterproof (e.g., waterproof gabardines
and poplins)....
EN 59.03 elaborates on Note 2, Chapter 59, by providing examples
of coatings that generally are not visible to the naked eye. It
does not impose further restrictions on the scope of heading
5903. The only legal constraints are those enumerated in Note 2,
Chapter 59, HTSUSA.
Accordingly, since the fabrics in question have been coated
with plastics material that is visible to the naked eye, they are
classifiable in heading 5903.
HOLDING:
The fabric in question is classifiable in subheading
5903.90.2500, HTSUSA, under the provision for textile fabrics,
impregnated, coated, covered or laminated with plastics, other
than those of heading 5902; other; of man-made fibers; other;
other. The fabric is dutiable at the rate of 8.5 percent ad
valorem and is subject to textile quota category 229.
Since reclassification of the merchandise of the merchandise
as indicated above will result in a lower rate of duty than
claimed, you are instructed to allow the protest in full. A copy
of this decision should be attached to the Form 19 Notice of
Action.
Sincerely,
John Durant, Director