CLA-2 R:C:T 957850 CMR
Mr. Jose Rodriguez
Rodenas & Rivera
Calle Murcia
11 02400 Hellin (Albacete)
Spain
RE: Classification of woven polypropylene fabric laminated with
polypropylene/polyethylene plastic; Modification of NYRL
899706 of July 27, 1994
Dear Mr. Rodriguez:
This ruling is in response to your request of August 31,
1994, that Customs reconsider its decision in NYRL 899706 in
which we classified a woven polypropylene fabric coated with
plastic in subheading 5407.20.0000, Harmonized Tariff Schedule of
the United States Annotated (HTSUSA). That tariff provision
provides for woven fabrics of synthetic filament yarn, including
woven fabrics obtained from materials of heading 5404, woven
fabrics obtained from strip or the like. Classification in
heading 5407, HTSUSA, was based upon Customs belief that the
plastic coating was not visible to the naked eye and thus,
classification in heading 5903, HTSUSA as a coated or laminated
fabric was precluded. Fabric samples in the coated and uncoated
condition were received by this office along with your
correspondence requesting we review our earlier decision.
Pursuant to section 625, Tariff Act of 1930 (19 U.S.C.
1625), 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)
(hereinafter section 625), notice of the proposed modification of
NYRL 899706 was published May 31, 1995, in the Customs Bulletin,
Volume 29, Number 22.
FACTS:
The coated fabric was identified in NYRL 899706 as code
E909. The fabric is composed of 100 percent polypropylene strips
measuring under 2 millimeters in width. The fabric is laminated -2-
on one surface with a polypropylene/polyethylene copolymer type
plastic. The Customs laboratory in New York analyzed the sample
fabric and determined the following:
Denier in warp: 1155
Denier in filling: 1852
Thickness of fabric: 0.62mm
Thickness of lamination: 0.07mm
Total thickness: 0.69mm
Weight of fabric: 203.5g (83.4 percent)
Weight of lamination: 40.7g (16.6 percent)
Total weight: 244.2g (100 percent)
The polypropylene strips used to weave the fabric are white
in color. The plastic laminate material is clear.
The woven polypropylene fabric is used in the manufacturing
of flexible intermediate bulk containers (large bags) used to
ship or transport materials between 1,000 and 4,000 pounds. The
fabric will be imported into the United States from Spain.
ISSUE:
Is the fabric at issue properly classified as a coated or
laminated fabric of heading 5903, HTSUSA, or was it properly
classified in NYRL 899706 as a woven fabric of heading 5407,
HTSUSA?
LAW AND ANALYSIS:
Classification of goods 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]."
Heading 5903, HTSUSA, provides for textile fabrics
impregnated, coated, covered or laminated with plastics, other
than those of heading 5902. Textile fabrics classified in this
heading must meet the terms of Note 2 of Chapter 59. This note
states is relevant part:
2(a) 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:
(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 -3-
purpose of this provision, no account should be
taken of any resulting change of color;
* * * * *
Therefore, for classification in heading 5903, HTSUSA, the
pertinent test is whether the plastic coating on the woven
polypropylene fabric is visible to the naked eye.
In determining whether a plastic coating or lamination is
visible to the naked eye, changes in color must be ignored.
Customs has stated in rulings that we cannot consider such things
as a change in the "feel" of the fabric (See, HRL 083540 of
October 3, 1989), or changes in light reflection such as a
dulling or sheen which may be the result of a plastics
application (See, HRL 084285 of July 20, 1989). These factors
could be the effects of a plastics application or of other
treatments to a fabric. They are not, however, the visible
plastics material itself.
The plastics material must be visibly distinguishable from
the fabric. In past rulings, Customs has looked to whether the
plastics application has visibly altered the surface character of
a fabric. In such instances, Customs has taken the view that in
viewing the change in the surface character, it is the plastics
material which we are seeing and thus the fabric is considered
coated. See, HRL 082219 of November 21, 1988, and HRL 083285 of
December 28, 1989. In addition, Customs has stated that the
ability to see plastic in the interstices of fabric is evidence
that the fabric is coated. When viewing fabric to determine if a
plastics material is present, it is permissible to view the
fabric from various perspectives: frontal, cross-sectional, and
by holding it up to light. See, HRL 086846 of July 23, 1990.
Viewing the submitted sample at an angle to a cross-section
of the fabric, a clear flat plastic sheet may be seen at the
edges of the fabric. This office also believes that the surface
character of the coated sample is different from that of the
uncoated sample. Due to the fact the plastics application is
clear, we can still view the weave, but it no longer has the
depth apparent in the uncoated sample. Based upon our
observations, it is our view that the plastic coating is visible
and therefore the fabric is classifiable as a coated fabric in
heading 5903, HTSUSA.
HOLDING:
The submitted coated fabric sample is classifiable in
subheading 5903.90.2500, HTSUSA, as a textile fabric of man-made
fibers, impregnated, coated, covered or laminated with plastics.
-4-
Goods classified in this provision fall within textile category
229 and are dutiable at 8.4 percent ad valorem.
NYRL 899706 of July 27, 1994, is modified in regard to the
classification of the coated fabric E909 to reflect the
classification set forth above.
In accordance with section 625, this ruling will become
effective 60 days after its publication in the Customs Bulletin.
Publication of rulings or decisions pursuant to section 625 does
not constitute a change of practice or position in accordance
with section 177.10(c)(1), Customs Regulations (19 CFR
177.10(c)(1)).
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