CLA-2 CO:R:C:T 955429 SK
Bruce Comstock
Cameron Balloons
7399 Newman Blvd.
Dexter, MI 48103
RE: Revocation of HRL 088988 (7/22/91); classification of
plastic-coated nylon fabric; Legal Note 2(a)(1)(3) to Chapter 59;
coating must be visible to the naked eye to warrant classification
within headings 5903 and 3921, HTSUSA; 5903.20.2500; 3921.90.1500;
HRL 950022 (9/26/91); San Francisco Newspaper Printing Co. v. U.S.,
9 C.I.T. 517, 620 F. Supp. 738 (1985).
Dear Mr. Comstock:
On July 22, 1991, this office issued you Headquarters Ruling
Letter (HRL) 088988 in which we denied protest number
3801-91-100093 in full and classified several styles of nylon
fabric as uncoated woven fabrics of synthetic filament yarns under
subheading 5407.42.0030, Harmonized Tariff Schedule of the United
States Annotated (HTSUSA). Upon review, that ruling is deemed to
be in error. Our analysis follows.
FACTS:
At issue are several styles of plastic-coated nylon fabric.
The subject fabrics consist of style numbers N1053 and N2268, which
were the subject of HRL 088988, and seven additional fabrics which
are similar to styles N1053 and N2268 in that they are made from
a woven nylon fabric, but differ in that the polyurethane coating
applied to that fabric may also contain a metal compound. Samples
of the subject fabrics in both their coated and uncoated states
were submitted to this office for examination. In your submission,
you describe the various fabric styles in the following manner:
STYLE UNDERLYING TYPE OF % OF COATING SIDES COATED
FABRIC COATING DUE TO PLASTIC
_________________________________________________________________
N1039; High Polyurethane 16-24 1
N1053; Tenacity
N1061. Nylon
---------------------------------------------------------
N1075. " Titanium Dioxide 18-26 1
Pigmented Polyurethane
----------------------------------------------------------------
N2268; " Silicone Elastomer 13-19 2
N2340.
---------------------------------------------------------------
CE-0240. " Metal-Pigmented 43-58 1
Polyurethane
----------------------------------------------------------------
CE-7053. " Metal-Pigmented 52-56 1
Polyurethane and
Contact Adhesive
---------------------------------------------------------------
1189/8248.Nylon Metal-Pigmented 35 1
Polyurethane
ISSUE:
Whether the fabrics in question are deemed coated pursuant to
Note 2(a)(1) to Chapter 59, HTSUSA, for purposes of classification
within headings 5903 and 3921?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is in
accordance with the General Rules of Interpretation (GRI's), taken
in order. GRI 1 provides that classification shall be in accordance
with the terms of the headings and any relevant section or chapter
notes. Where goods cannot be classified solely on the basis of GRI
1, and if the headings and legal notes do not otherwise require,
the remaining GRI's may be applied in the order of their
appearance.
Heading 5903 of the Tariff Schedule provides for impregnated,
coated, covered or laminated textile fabrics. Note 2(a)(1),
Chapter 59, provides that heading 5903 includes all coated fabrics
regardless of the weight per square meter or nature of the plastic
material, so long as the plastic component can be seen with the
naked eye. Chapter Note 2(a)(3) to this section excludes products
in which the textile fabric is coated or covered on both sides with
plastic; such products are classifiable within Chapter 39 so long
as such coating can be seen with the naked eye with no account
being taken of any resulting change of colour.
The determinative factor with regard to whether fabric is
deemed coated for purposes of classification under either heading
5903 or heading 3921, HTSUSA, is whether the coating is visible to
the naked eye. In the instant analysis, it is apparent upon
examination of the above-cited styles that they are coated with
plastic. This determination is based on a comparison made between
the coated sample of each style with its uncoated counterpart.
Specifically, we note that in the case of each style, all of the
fabric's interstices have been filled with either a polyurethane
coating or, in the case of styles N2268 and N2340, a silicone
elastomer coating. When held up to a source of light, the
interstices in the uncoated samples permit light to shine through.
The coated samples leave no visible gaps in the weave of the
fabric. This condition was previously held by Customs to be
visible evidence of coating. See HRL 950022, dated September 26,
1991. We further note that the plastic coating on each style
serves to blur the underlying woven nylon fabric.
Styles N1039, N1053, N1061, N1075, CE-0240, CE-7053 and
1189/8248 are coated with polyurethane on one side and as these
coatings are visible to the naked eye, they are classifiable under
heading 5903.20.2500, HTSUSA, which provides for, in pertinent
part, textile fabrics coated with polyurethane.
Heading 3921, HTSUSA, provides for other plates, sheets, film,
foil and strip, of plastics. As styles N2268 and N2340 are visibly
coated on both sides with silicone elastomer, classification is
proper under subheading 3921.90.1500, HTSUSA, which provides for,
in pertinent part, sheets of plastics combined with textile
materials, 70 percent or less by weight of plastics.
HOLDING:
HRL 088988 is revoked.
Styles N1039, N1053, N1061, N1075, CE-0240, CE-7053 and
1189/8248 are classifiable under subheading 5903.20.2500, HTSUSA,
under the provision for textile fabrics impregnated, coated,
covered or laminated with plastics, other than those of heading
5902: with polyurethane: of man-made fibers: other: other..., and
are dutiable at a rate of 8.5 percent ad valorem. The textile
category is 229.
Styles N2268 and N2340 are classifiable under subheading
3921.90.1500, HTSUSA, which provides for other plates, sheets,
film, foil and strip, of plastics: other: combined with textile
materials and weighing not more than 1.492 kilograms per square
meter: other... , dutiable at a rate of 8.5 percent ad valorem.
The textile category is 229.
The designated textile and apparel category may be subdivided
into parts. If so, 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 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.
In order to ensure uniformity in Customs' classification of
this merchandise and eliminate uncertainty, pursuant to section
177.9(d)(1), Customs Regulations (19 CFR 177.9(d)(1)), HRL 088988
is revoked.
In San Francisco Newspaper Printing Co. v. United States, 9
C.I.T. 517, 620 F. Supp. 738 (1985), the Court of International
Trade held that Customs is not authorized to rescind a denial of
a protest. Therefore, we cannot reconsider our position with
respect to the entries at issue in HRL 088988. However, with
respect to future importations of the subject merchandise, HRL
088988 will no longer control the classification. Pursuant to
section 177.9(a), Customs Regulations (19 CFR 177.9(a)), this
ruling letter may be applied to all entries which are unliquidated,
or other transactions with respect to which the Customs Service has
not taken final action.
Sincerely,
John Durant, Director
Commercial Rulings Division