CLA-2 RR:TC:TE 958261 SK
John C. Schott
Schott International, Inc.
1340 East Archwood Avenue
Akron, Ohio 44306
RE: NYRL 807456 (3/23/95) affirmed; classification of "coated fabric"; visible to the naked eye prerequisite of Chapter Note 2(a)(1) to Chapter 59; subheading 5407.52.2060, HTSUSA.
Dear Mr. Schott:
This is in response to your letter of July 27, 1995, in which you request a reconsideration of New York Ruling Letter (NYRL) 807456 which was issued to your customs broker, Frederick Richards, Inc., on March 23, 1995. In NYRL 807456, a textured filament polyester fabric, coated with polyurethane, was classified under subheading 5407.52.2060, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Upon review of NYRL 807456, this office affirms the holding in that case. Our analysis follows.
FACTS:
The merchandise at issue, a sample of which was resubmitted to Customs, consists of a 100 percent textured filament polyester woven fabric that has been dyed a uniform color (purple). A clear polyurethane plastic has been applied to one surface of the fabric. You provided the following weight specifications:
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Weight of Textile: 196.6 g/square meter
Weight of PU: 40.7 g/square meter
Total Weight: 237.3 g/square meter
No other fabric construction specifications were provided.
ISSUE:
What is the correct classification of the subject merchandise?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 requires that classification be determined according to the terms of the chapter notes and, unless otherwise required, according to the remaining GRI's. 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, taken in order.
You seek reclassification of the subject fabric under heading 5903, HTSUSA. Heading 5903, HTSUSA, provides for "[T]extile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902." Chapter Note 2(a)(1) to Chapter 59 states that heading 5903 precludes:
"[F]abrics 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."
As noted supra, heading 5903 provides for only those fabrics which are visibly coated. If, upon unaided visual examination, there is the suggestion of the presence of plastic coating, it is then within Customs' discretion to examine the fabric under magnification. See HRL 082644 of March 2, 1990.
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 coated and is classifiable in this heading if the plastic coating is visible to the naked eye. This standard does not allow the examiner to take the "effects" of plastic
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coating into account. Plastic coating will often result in a change of color, or increase a fabric's stiffness; 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.
In the instant analysis, examination of the subject fabric yields the finding that
the polyurethane coating is not visible to the naked eye. In your submission to Customs, you direct the examiner's attention to one inch from the edge of the selvage of the coated side of the fabric sample. You state that the point where the coating application ends is clearly visible. What appears visible to the examiner is a line showing some spotty flaking of what appears to be excess plastic and a slightly darker purple line. The darker purple line is discounted in that Customs may not consider a change in color as an indicator of visibility. See Note 2(a)(1) to Chapter 59. Moreover, slight flakiness or blotches of excess plastic at the point near a fabric's selvage where the coating application ends is a typical occurrence when a doctor blade or similar applicator is used to apply plastic to this type of fabric. Such selvage edges are anomalies to the material as a whole. Customs will disregard the appearance of the selvage when making a determination as to whether fabric as a whole is visibly coated for tariff classification purposes. Customs looks to that portion of the fabric that will actually be used in making the end product; to do otherwise would result in a misrepresentation of the intent of the fabric's producer. Surely, the manufacturer of this fabric did not intend for the blotchy selvage area to be visible when this fabric is incorporated into its finished product.
Accordingly, based on a physical examination of the body of the subject fabric, this office affirms the finding set forth in NYRL 807456. The fabric is not visibly coated and classification is precluded from heading 5903, HTSUSA. Classification is proper within heading 5407, HTSUSA, which provides for, in pertinent part, woven fabrics of synthetic filament yarn.
HOLDING:
NYRL 807456 is affirmed.
The subject fabric is classifiable under subheading 5407.52.2060, HTSUSA, under the provision for "[W]oven 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 textured polyester filaments, dyed, other, weighing more than 170 g/square meter," dutiable at a rate of 16.6 percent ad valorem. The textile quota category is 620.
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The designated textile and apparel categories 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 the local Customs office.
Due to the nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact the local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.
Sincerely,
John Durant, Director
Tariff Classification Appeals Division