CLA-2 CO:R:C:T 955031 SK
District Director
U.S. Customs Service
200 St. Paul Place, 28th floor
Baltimore, MD 21202
RE: Decision on Application for Further Review of Protest No. 1303-
93-100166; classification of fabrics coated with melamine resin;
visible to the naked eye test of Chapter Note 2(a) to Chapter 59,
HTSUSA; 5407.60.2025 and 5407.60.2035, HTSUSA; polyester sailcloth.
Dear Sir:
This is a decision on application for further review of a
protest timely filed on July 21, 1993, by the law firm of Holland
& Knight, on behalf of their client, Sati/Performance Textiles,
against your decision regarding the classification of coated
sailcloth from Spain. At issue is the proper classification of
several weights of coated fabric made of woven polyester with a
coating of melamine resin. Eight entries of this merchandise were
made at the port of Baltimore between the dates of April 27, 1992,
and April 1, 1993. Three of the eight entries have been
liquidated.
FACTS:
The fabrics the subject of this protest were imported in
several different weights, but all are described by the protestant
as "All-Purpose Polyester Color Sail-Cloth Fabric Coated with
Melamine Resin." The following descriptions were provided in the
protestant's statement of facts, which was submitted to this office
as an attachment to Protest 1303-93-100166.
* All- Purpose Four Ounce Polyester Color Sail-Cloth Fabric Coated
with Melamine Resin."
(Style C-5170)
Finished Weight: 4.0 ounces per square yard;
Polyester Fiber: 3.30 ounces per square yard;
Plastic Coating: 0.70 ounces per square yard;
Threads per Square Inch in Warp: 108;
Threads per Square Inch in Filling: 63;
Warp: 167 decitex;
Weft: 330 decitex.
* All- Purpose Five Ounce Polyester Color Sail-Cloth Fabric Coated
with Melamine Resin.
(Style C-5210)
Finished Weight: 5 ounces per square yard;
Polyester Fiber: 4.25 ounces per square yard;
Plastic Coating: .75 ounces per square yard.
Threads per Square Inch in Warp: 132
Threads per Square Inch in Filling: 68
Warp: 167 decitex
Weft: 330 decitex
* All- Purpose Six Ounce Polyester Color Sail-Cloth Fabric Coated
with Melamine Resin.
Finished Weight: 6.0 ounces per square yard;
Polyester Fiber: ?
Plastic Coating: ?
Threads per Square Inch in Warp: 117;
Threads per Square Inch in Filling: 48;
Warp: 280 decitex;
Weft: 550 decitex.
* All-Purpose Seven Ounce Polyester Color Sail-Cloth Fabric Coated
with Melamine Resin.
Finished Weight: 7.0 ounces per square yard;
Polyester Fiber: ?
Plastic Coating: ?
Threads per Square Inch in Warp: 117;
Threads per Square Inch in Filling: 46;
Warp: 280 decitex;
Weft: 660 decitex.
* All-Purpose Eight Ounce Polyester Color Sail-Cloth Fabric Coated
with Melamine Resin.
Finished Weight: 8.0 ounces per square yard;
Polyester Fiber: ?
Plastic Coating: ?
Threads per Square Inch in Warp: 132;
Threads per Square Inch in Filling: 41;
Warp: 280 decitex;
Weft: 830 decitex.
* All-Purpose Nine Ounce Polyester Color Sail-Cloth Fabric Coated
with Melamine Resin.
Finished Weight: 9.0 ounces per square yard;
Polyester Fiber: ?
Plastic Coating: ?
Threads per Square Inch in Warp: 132;
Threads per Square Inch in Filling: 41;
Warp: 330 decitex;
Weft: 830 decitex.
We received samples of each fabric weight in its finished,
coated form. Also, protestant submitted samples of the 4, 6, 7,
8 and 9 ounce fabrics in their uncoated states for comparison
purposes. Protestant states that no other uncoated samples are
available for submission to this office at this time. Protestant
also states that an "imperfect" sample of style C-5170 was included
with his submission, however neither this office, the port at
Baltimore nor the National Import Specialist in New York is in
possession of this sample.
The subject fabric is imported in continuous lengths and is
used to manufacture sails for boats and wings for light-weight
aircraft. The yarn is twisted and woven at the Sociedad Anonima
Tejidos Industriales (SATI) plant in Barcelona, Spain. The fabric
is heat set at approximately 210 degrees celsius. The material is
then dipped or run through a resin bath and pressed between
squeezing rollers to remove excess resin. This is followed by
drying and curing of the resin. The material is then calendared
to achieve flatness and evenness.
We note that this office has been presented with conflicting
information regarding the weight differentials between the coated
and uncoated fabrics. Specifically, we direct you to Exhibit G in
which Mr, Gutierrez, Technical Fabric Product Manager at SATI,
states that the weight of the fabric, after coating, is increased
about 4% for fabrics with a medium firm finish and 9% for fabrics
with a firm finish. These figures do not match those provided by
Mr. Himmelberg, listed supra, which indicate a much greater weight
increase after coating. While this information is not germane to
classification in this instance, it is some indication that the
accuracy of the information supplied to this office may be in
doubt.
There are also discrepancies with regard to what type of
coating substance is used on this fabric. The manufacturer's
affidavit states that a melamine resin and fatty softeners are used
for a medium firm finish and melamine resin, fatty softeners and
polyester resins for a firm finish. The protestant states only
that melamine is used as the coating. The importer claims a
mixture of polyester and melamine is used and, in Exhibit F, a Mr.
Tindle states in his sworn affidavit that, "[B]ased on my years of
experience in this industry, it is apparent to me, after viewing
this fabric with my own eyes, that the sample has been coated with
some sort of silicate or polyeurethane (sic) coating." Again, this
information is not determinative of classification so long as some
form of melamine coating is used on the fabric.
Eight entries of the subject fabric were made at the Customs
port of Baltimore between the dates of April 27, 1992, and April
1, 1993, and were classified either as uncoated fabrics under
subheading 5407.60.2025, HTSUSA, or under subheading 5407.60.2035,
HTSUSA, depending on the weight of the fabric. As mentioned supra,
some of these entries have been liquidated, others have not.
Protestant states that this merchandise is properly classified
under subheading 5903.20.2500, HTSUSA, as "textile fabrics,
impregnated, coated, covered or laminated with plastics ... ."
Note 2(a)(1) to Chapter 59, HTSUSA, states that heading 5903 will
govern the classification of a coated fabric so long as the
impregnation, coating or covering can be seen with the naked eye
with no account being taken of a resulting change in color.
Customs' position is that classification of this fabric is
proper under subheading 5407.60.2025, HTSUSA, as uncoated fabric.
This classification is predicated on the District Director's
position that the clear plastic coating on the imported fabric is
not visible to the naked eye as required by Note 2(a)(1) to Chapter
59, HTSUSA.
ISSUE:
Whether the clear plastic coating on the fabric at issue is
visible to the naked eye so as to warrant classification in Chapter
59 of the Harmonized Tariff Schedule of the United States Annotated
(HTSUSA).
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is governed by
the General Rules of Interpretation (GRI's). GRI 1 provides that
classification shall be determined according to the terms of the
headings and any relative section or chapter notes, taken in order.
Merchandise that cannot be classified in accordance with GRI 1 is
to be classified in accordance with subsequent GRI's.
Chapter Note 2(a)(1) to Chapter 59 of the tariff schedule
states that heading 5903 applies to textile fabrics impregnated,
coated, covered or laminated with plastics other than fabrics in
which the impregnation, coating, covering or lamination cannot be
seen with the naked eye. No account is to be taken of any
resulting change in color.
The sole criterion upon which Customs is to determine whether
fabric is coated for purposes of classification under heading 5903,
HTSUSA, is based on visibility: fabric is classifiable in Chapter
59 if the plastic coating is visible to the naked eye. This
standard does not allow the examiner to take the "effects" of
plastic into account. Plastic coating will often result in a
change of color, increase a fabric's stiffness or lend a sheen to
fabric; these are factors which, while indicative of the presence
of plastic, may not be taken into account in determining whether
the plastic itself is visible to the naked eye. The prohibition
against taking a change of color into account is explicitly set
forth in Chapter Note 2(a)(1). Stiffness is not a reliable
indicator of coating because it may dissipate or entirely disappear
over time and it is detected more by touch than by visual
inspection. Sheen may be imparted to a fabric by the application
of coating, but this too is an unreliable indicator of the presence
of coating inasmuch as it may be imparted to fabric by means of
heat calendaring and other methods of treating fabric which do not
involve the application of coating.
In this instance, protestant has submitted the sworn
affidavits of four individuals who are familiar with this type of
fabric (see Exhibits C, D, E and F). All four describe the fabric
in similar terms and all refer to the coated fabrics' "smoothness"
as one of their basis' for claiming that the coating is visible.
Three of the affiants mention that the "intersections" of the
fabrics' weave has been filled with resin, and two mention a
"streaking" effect created by the coating as visible evidence of
its presence. One affiant states that the coating is visible based
on the fact that the edges of uncoated samples will fray, whereas
the edges of the coated sample do not.
With regard to the affiants' first contention, that the
coating on the subject fabric is visible to the naked eye based on
the fact that the coating of resin has made the fabric "smooth,"
we do not agree. A close inspection of the various fabric weights
in their coated states does not reveal an inordinate amount of
smoothness, and certainly not to the extent that the underlying
weave has been blurred or obscured in any manner. Comparison of
the coated samples with the uncoated samples yields the same
finding: the weaves of both coated and uncoated samples appear
equally distinct, even under magnification.
As stated above, three of the affiants state that the
intersections of the subject fabric have been filled with resin.
While this may be true, or at least the melamine resin covers the
intersections, the coating in the interstices is still not visible
to the naked eye. In the past, Customs has looked to whether
coating had filled or draped across a looser fabric's interstices
as a possible means of determining whether coating was visible.
In the instant case, however, the weaves of these fabrics are
relatively tight and do not permit the naked eye to detect the
presence of coating in their intersections.
The "streaking" effect cited as a visible sign of the resin
coating on the subject fabrics is not apparent to the examiners in
this office. We are unable to detect any streaking, with or
without magnification.
Lastly, the protestant states that "the coating is visible to
the naked eye because the threads at the edges of the fabric have
bonded together as a result of the application of the coating."
The presence of loose, frayed edges on the uncoated sample does not
serve to render the resin on the coated sample visible. We stress
that the standard by which Customs must abide states that the
coating must be visible; we can not base classification of fabric
within Chapter 59 of the tariff schedule on whether uncoated fabric
counterparts have frayed edges.
As the plastic coating is not visible to the naked eye, this
fabric is precluded from classification under heading 5903, HTSUSA.
We further note that protestant's assertion that the subject
merchandise is properly classifiable under subheading 5903.20.2500,
HTSUSA, is incorrect because that subheading provides for fabrics
that are visibly coated with polyurethane. Classification of the
subject merchandise is proper under heading 5407, HTSUSA, which
provides for, in pertinent part, woven fabrics of synthetic
filament yarn.
HOLDING:
The fabrics at issue which weigh less than 170 grams per
square meter (the 3, 4 and 5 ounce fabrics) are classifiable under
subheading 5407.60.9925, HTSUSA, (the 1994 corollary to
5407.60.2025, HTSUSA), under the provision for "woven fabrics of
synthetic filament yarn, including woven fabrics obtained from
materials of heading 5404: other woven fabrics, containing 85
percent or more by weight of non-textured polyester filaments:
other: other... dyed: weighing not more than 170 grams per square
meter: flat fabrics...," dutiable at a rate of 17 percent ad
valorem. The textile quota category is 619.
The fabrics at issue which weigh more than 170 grams per
square meter (the 6, 7, 8 and 9 ounce fabrics) are classifiable
under subheading 5407.60.9935, HTSUSA, (the 1994 corollary to
5407.60.2035, HTSUSA), under the provision for "woven fabrics of
synthetic filament yarn, including woven fabrics obtained from
materials of heading 5404: other woven fabrics, containing 85
percent or more by weight of non-textured polyester filaments:
other: other... dyed: weighing more than 170 grams per square
meter," dutiable at a rate of 17 percent ad valorem. The textile
quota category is 620.
As the rate of duty under the classification indicated above
is the same as the rate under which the subject merchandise was
entered, you are instructed to deny the protest in full. A copy
of this decision should be furnished to the protestant with the
Form 19 notice of action.
Sincerely,
John Durant, Director
Commercial Rulings Division