OT:RR:CTF:FTM H330139 BJK
Mr. Zane Thomas
Precision Fabrics Group, Inc.
301 N. Elm Street, Suite #600
Greensboro, North Carolina 27401
Re: Affirmation of NY N329700; Tariff Classification of Coated Polyester Stitch-Bonded Fabric from Vietnam.
Dear Mr. Thomas:
This is in response to your request, dated January 17, 2023, for reconsideration of New York Ruling Letter (“NY”) N329700, dated December 30, 2022, on behalf of Precision Fabrics Group, Inc., regarding the tariff classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of Style 20336, a polyester stitch-bonded fabric with a gray-colored, acrylic coating from Vietnam.
In NY N329700, U.S. Customs and Border Protection (“CBP”) classified Style 20336 under subheading 6005.36.0020, HTSUS Annotated (“HTSUSA”), which provides for “Warp knit fabrics (including those made on galloon knitting machines), other than those of headings 6001 to 6004: Of synthetic fibers: Other, unbleached or bleached: Other: Stitch-bonded goods.”
In your request for reconsideration, you state that Style 20336 should be classified under heading 5903, HTSUS. You explain that the gray-colored, acrylic coating on the fabric is visible to the naked eye and qualifies as a coated fabric under Chapter 59, HTSUS. We have reviewed NY N329700 and determined it to be correct for the reasons set forth below.
FACTS:
NY N329700 described the coated polyester stitch-bonded fabric and how it will be imported and sold as follows:
Style 20336 is a coated, stitch-bonded fabric composed of 100% polyester staple fibers and chain stitched with 100% polyester yarn made of unbleached fibers. The stitch-bonded fabric is coated with an acrylic based, gray colored coating. Upon visual review of the sample, the coating is not visible to the naked eye. According to the information provided, the coated fabric weighs 90 g/m2. The fabric will be used on the bottom of a mattress or on the top of a box spring or other foundation. It will be imported in industrial sized roll form, typically 82 inches in width.
In follow-up correspondence on March 31, 2023, you indicated that the coating is comprised of an acrylic latex polymer, kaolin clay, and carbon black. The coating itself is a gray color. The coating is applied using a foam coating process, whereby the coating compound is first foamed using air. A layer of the foam compound is applied to the surface of the uncoated fabric, and the fabric is then passed through rollers and cut to control the thickness of the foam layer. The fabric is then dried in ovens. You stated that the coating is used to provide additional strength to the fabric, provide opacity to the fabric, and to increase the coefficient of friction of the fabric, which are important for fabrics used on the bottom of mattresses and on top of box springs.
Samples of the fabric, both coated and uncoated, were provided for both the initial ruling in NY N329700, and again for this reconsideration. There is no dispute that the fabric is a stitch-bonded fabric composed of 100 percent polyester staple fibers and chain stitched with 100 percent polyester yarn made of unbleached fibers. The samples provided were intended to demonstrate the fabric’s appearance before and after the gray-colored, acrylic coating is applied.
In your request for reconsideration, you state that Style 20336 should be classified under heading 5903, HTSUS, because the fabric is an “impregnated and coated stitch-bonded fabric.” You state that Style 20336 is coated in acrylic plastic, and that by comparing a coated and uncoated sample of Style 20336, “the gray colored, acrylic plastic coating on the 20336-C [coated sample] is clearly visible to the naked eye when compared to the uncoated stitch-bonded fabric [sample].”
ISSUE:
Is the gray-color, acrylic coated fabric of Style 20336 a “coated fabric,” which has a coating that is “visible to the naked eye,” as provided for under heading 5903, HTSUS?
LAW AND ANALYSIS:
Classification decisions under the HTSUS are made in accordance with the General Rules of Interpretation (“GRIs”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. If the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The 2023 HTSUS provisions under consideration are as follows:
5903 Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902:
* * *
6005 Warp knit fabrics (including those made on galloon knitting machines), other than those of headings 6001 to 6004:
* * *
Note 2 to Chapter 59, HTSUS, provides:
Heading 5903 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:
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 of color;
. . . .
* * *
In addition, in interpreting the HTSUS, the Explanatory Notes (“ENs”) of the Harmonized Commodity Description and Coding System may be utilized. The ENs to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 59.03 states, in pertinent part, that:
This heading covers textile fabrics which have been impregnated, coated, covered or laminated with plastics (e.g., poly(vinvl chloride)).
Such products are classified here whatever their weight per m2 and whatever the nature of the plastic component (compact or cellular) provided:
That, in the case of impregnated, coated or covered fabrics, the impregnation, coating or covering can be seen with the naked eye otherwise than by a resulting change in colour.
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 resulting 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). Textile fabrics partially coated or partially covered with plastics and bearing designs resulting from these treatments are also classified in Chapters 50 to 55, 58 or 60.
* * *
The General Note to Chapter 60 provides that:
This Chapter covers textile fabrics which are manufactured, not like woven fabrics by interlacing warp and weft threads, but by the production of a series of interlinking loops. In general, these goods comprise:
Knitted fabrics (weft knits and warp knits)
. . .
(II) Warp knits consist of a number of threads running in the direction of the warp (i.e., along the length of the fabric) each thread forming loops interlocking alternatively with loops in rows to the left and right. . . .
The warp knits further include:
Stitch-bonded goods, provided they have chain stitches formed by textile yarn.
* * *
Note 2 to Chapter 59, HTSUS, states that “no account should be taken of any resulting change of color” to establish whether a fabric is coated for purposes of classification in heading 5903, HTSUS. Furthermore, EN 59.03 provides 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 resulting change in colour usually fall in Chapters 50 to 55, 58 or 60.” Therefore, to be classifiable under heading 5903, HTSUS, the coating of a fabric must be more than just a change in color.
CBP has established what constitutes a coating that is visible to the naked eye. In Headquarters Ruling Letter (“HQ”) 957378, dated August 10, 1995, CBP stated that “where coating served to ‘blur’ or ‘obscure’ a fabric’s underlying weave, the fabric was deemed visibly coated for purposes of classification within heading 5903, HTSUS[].” (citing HQ 083127, dated November 8, 1989 and HQ 087668, dated January 9, 1991). Recently in HQ H314149, dated March 8, 2022, CBP elaborated on the factors CBP takes into consideration when determining whether a coating is visible to the naked eye under Note 2 to Chapter 59, HTSUS. These factors included: whether the coating has visibly altered the surface of the fabric; whether the plastic is visible in the interstices of the fabric; whether the thread or weave is blurred or obscured; and whether the surface of the fabric is leveled or smoothed and whether the coating itself creates a distinct visible pattern. See HQ H314149 (citing HQ 961172, dated August 6, 1998; HQ967884, dated October 26, 2005; and HQ W968381, dated November 20, 2007). Indeed, CBP has previously concluded 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 presence of the plastic coating. See HQ H286251, dated September 12, 2019 (citing HQ 967884, dated October 26, 2005). As such, one may be able to discern between coated and uncoated fabric and still not see the plastic coating itself, but rather the effects of the coating. Id.
Here, the fabric sample provided reflects a gray-colored coating applied to the stitch-bonded polyester fabric. The uncoated sample provided is a light gray color, whereas the coated sample provided is a darker gray color. However, in reviewing the coated sample, the underlying weave is neither blurred nor obscured. The fibers, while different in color, are as identifiable in the uncoated sample as in the coated sample. The stitching in the coated sample, while different in color, is also not blurred or obscured, and is as identifiable as in the uncoated sample. Under each of the aforementioned factors enumerated above, the gray-colored, acrylic coating is not visible to the naked eye upon visual inspection. Note 2 to Chapter 59, HTSUS, and EN 59.03 precludes classification of a textile fabric under heading 5903, HTSUS, if the coating is not visible to the naked eye. Therefore, for purposes of classification of the stitch-bonded polyester fabric, the gray-colored, acrylic coating is not visible to the naked eye. Consequently, the coated stitch-bonded polyester fabric is not classifiable under heading 5903, HTSUS.
Conversely, Chapter 60, HTSUS, provides for knitted fabrics, including stitch-bonded fabrics. Specifically, General Note to Chapter 60, HTSUS, states that stitch-bonded fabrics that have chain stitches formed by textile yarn are included under the chapter. Style 20336 is a stitch-bonded polyester fabric, with chain stitches formed by textile yarn. By application of GRI 1, Style 20336 is classifiable under heading 6005, HTSUS, and specifically under subheading 6005.36, HTSUS.
HOLDING:
For the above reasons, we affirm NY N329700, dated December 30, 2022, which correctly classified Style 20336 in subheading 6005.36.00, HTSUS, which provides for “Warp knit fabrics (including those made on galloon knitting machines), other than those of headings 6001 to 6004: Of synthetic fibers: Other, unbleached or bleached: Other: Stitch-bonded goods.” The 2023 column one, general rate of duty is 10% ad valorem.
Sincerely,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division