CLA-2 CO:R:C:T 088140 CMR
Ms. Lisa Holland
Rogers & Brown Customs Brokers, Inc.
P.O. Box 20160
Charleston, South Carolina 29413
RE: Classification of laminated fabric for specialized apparel
Dear Ms. Holland:
This ruling is in response to your letter of August 29,
1990, on behalf of Hoechst Celanese Corporation, requesting the
classification of a laminated fabric used in the manufacture of
specialized apparel for protection against chemical agents. A
sample swatch of the finished fabric was received with your
request along with samples of the woven fabric and the knit
fabric with a piece of adhesive webbing.
FACTS:
The fabric at issue is a laminated composite of conventional
woven and knit fabrics, spherical activated carbon particles, and
polyurethane adhesives. The fabric consists of three basic
layers (clearly visible in cross-section) that have been
laminated together using a polyurethane adhesive which is not
visible in the cross-section. The first layer, which represents
the outer layer of the clothing that will be made from this
fabric, is a plain woven fabric composed of 20 percent
polybenzimidazole staple fibers and 80 percent meta-aramid staple
fibers. The center layer is glued to the woven fabric using a
polyurethane adhesive. This layer is composed of activated
carbon spheres and is clearly visible in cross-section. The
carbon spheres act to absorb and deactivate toxic chemical agents
such as nerve gas. The final layer is a jersey knit fabric
composed of 20 percent polybenzimidazole staple fibers and 80
percent meta-aramid staple fibers. This layer is laminated to
the activated carbon layer by means of a web of polyurethane
plastic adhesive. The polyurethane web acts only as an adhesive
and essentially disappears leaving no visible layer between the
jersey knit and the activated carbon spheres.
-2-
The subject fabric will be assembled in Germany from U.S.
fabrics. The adhesives and carbons will be provided by European
vendors. This specialized fabric will be used to manufacture
protective clothing in the United States for the U.S. military.
ISSUE:
Is the subject fabric classifiable in heading 5907, HTSUSA,
which provides for, among other things, textile fabrics
otherwise impregnated, coated or covered?
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, provided such
headings or notes do not otherwise require, according to [the
remaining GRIs taken in order]."
Heading 5907, HTSUSA, provides for, among other things,
"textile fabrics otherwise impregnated, coated or covered."
Chapter Note 5, Chapter 59, provides in pertinent part:
Heading 5907 does not apply to:
(a) 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;
* * * *
(f) Natural or artificial abrasive powder or grain, on
a backing of textile fabrics (heading 6805);
* * * *
The Explanatory Notes for heading 5907 state in pertinent
part:
This group covers textile fabrics (excluding those of
headings 59.01 to 59.06), which have been impregnated,
coated or covered, provided the impregnation, coating or
covering can be seen with the naked eye; for that purpose no
account should be taken of any resulting change of colour.
* * * *
-3-
The fabrics covered here include:
(G) Fabric, the surface of which is coated with glue (rubber
glue or other), plastics, rubber or other materials and
sprinkled with a fine layer of other material such as:
(1) Textile flock or dust to produce imitation suedes.
* * * Fabrics covered with textile flock or dust to
produce imitation pile (for example, corduroy) remain
classified in this heading.
(2) Powdered cork (e.g., for wall coverings).
(3) Powered or small granules or glass (e.g.,
"microspheres" for cinematograph screens).
(4) Powdered mica.
The fabric at issue here is a composite of woven and knit
fabrics with activated carbon spheres in the middle. The
activated carbon sphere layer can clearly be seen with the naked
eye when examining a cross-section of the fabric.
While upon an initial reading of the Explanatory Notes and
examination of the fabric at issue it appears the fabric is of
the type that would be classifiable in heading 5907 the heading
does not include laminated fabrics.
The exclusion of laminated textile fabrics from heading
5907 has not gone unnoticed by the United States. At the Fourth
Session of the Review Subcommittee of the Harmonized System
Committee, the United States proposed to add the term
"lamination" to the heading text for heading 5907 and Note 5(a)
of Chapter 59. The proposal was rejected with the majority of
the opposition expressing the belief that such a change in the
text would change the scope of heading 5907 and that currently no
laminated product clearly fell within heading 5907.
The United States, as a party to the International
Convention on the Harmonized Commodity Description and Coding
System, done at Brussels on 14 June 1983, is obligated by
Article 3(1)(a)(ii) to "not modify the scope of the Sections,
Chapters, headings or subheadings of the Harmonized System."
Article 3(2) allows for textual adaptations, as necessary, to
give effect to the Harmonized System in domestic law. For the
United States to include a laminated fabric in heading 5907,
especially after the rejection of the U.S. proposal, would be an
enlargement of the scope of heading 5907 in violation of
-4-
Article 3(1)(a)(ii). Therefore, Customs does not believe the
fabric at issue is classifiable in heading 5907 because it is a
laminated fabric and thus, beyond the coverage of the heading.
Since heading 5907 has been eliminated from consideration,
we must look to other possible classification headings. Heading
5903 provides for textile fabrics impregnated, coated, covered or
laminated with plastics. However, Note 2(a)(1), Chapter 59,
excludes from heading 5903 fabrics in which the impregnation,
coating or covering cannot be seen with the naked eye. Further,
the Explanatory Note for 5903 states in pertinent part:
The laminated fabric of this heading should not be
confused with fabrics which are simply assembled in layers
by means of a plastic adhesive. These fabrics, which have
no plastics showing in cross-section, generally fall in
Chapters 50 to 55.
The polyurethane adhesive used to laminate the fabrics and
carbon spheres together is not visible to the naked eye when the
fabric is examined. There is no sign of the plastic in the
cross-section, though the carbon spheres are clearly visible.
Since the plastic is not visible, the fabric is not classifiable
in heading 5903.
Heading 5512 provides for woven fabrics with 85 percent or
more synthetic staple fibers. The outer layer of the subject
laminated fabric is 100 percent synthetic staple woven fabric and
so classifiable within this heading.
Heading 6002 provides for knitted or crocheted fabrics other
than pile fabrics (which are classified in heading 6001). The
inner layer of the laminated fabric is 100 percent synthetic
staple knit fabric and so classifiable within this heading.
Heading 3802 provides for, among other things, activated
carbon. The activated carbon spheres are classifiable within
this heading.
Since there are three competing provisions which each refer
to part only of the materials making up the laminated fabric at
issue, each heading must be regarded as equally specific. GRI
3(a). We must therefore classify the laminated fabric according
to that material which gives it its essential character, if that
is determinable. GRI 3(b).
There is no question that all three components, the knit and
woven fabrics and the carbon, contribute significantly to the
character and worth of the laminated fabric. However, the woven
fabric has a value 2 1/2 times the value of the knit fabric and
double the value of the activated carbon microspheres.
-5-
In determining essential character, various factors may be
considered, such as bulk, value, quantity, weight and role. In
this instance, each component is an integral part of the whole,
but one component, the woven fabric, is significantly higher in
value. Therefore, we believe the woven fabric is the component
which imparts the essential character to the fabric.
HOLDING:
The laminated fabric at issue is classified in subheading
5512.99.0020, HTSUSA, as a woven fabric of synthetic fibers,
containing 85 percent or more by weight of synthetic staple
fibers, other, sheeting. The fabric falls within textile
category 613 and is dutiable at 17 percent ad valorem.
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