CLA 2 RR:CR:TE 961172 ASM
Tariff No.: 5903.20.2500, 5903.90.2500.
Port Director
U.S. Customs Service
Chicago, Illinois 60607
RE: Tariff Classification of Balloon Cloth Fabric
Protest for Further Review No. 3901 97 100919
Dear Port Director:
This letter concerns the above captioned Protest for Further Review regarding the tariff classification of balloon cloth fabric under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).
FACTS:
The subject article concerns the classification of a number of shipments of woven nylon fabric that is used in the manufacture of hot air balloons. The goods were entered under subheadings 5903.20, HTSUSA, as textile fabric coated with polyurathane plastic or subheading 3921.90 as textile material completely encased in plastic.
The port of Chicago returned the goods with a rate advance, under subheading 5407.42, HTSUSA, as woven synthetic fabrics of nylon filament yarn. A protest was filed by the importer which listed four styles as follows: N1053 (ripstop blue); N2372 (ripstop white); N2369 (plain blue); N1084 (ripstop green/yellow).
The protestant claims that styles N1053, N2372, and N1084 are coated on one surface with polyurathane plastic (PU), while the fourth style, N2369 is coated on both sides with a silicone elastomer. It is stated that all of these woven fabrics are of 100% high tenacity nylon 6.6, either in ripstop or plain weave. In addition, it is claimed that the coating substances are clear for three of the styles with the exception of style N2372, where the coating has been pigmented white with Titanium Dioxide. It is also noted that the PU coated materials have been fluorocarbon proofed.
ISSUE:
Whether the subject balloon fabric is properly classifiable under headings 5903 and 3921, HTSUSA, as "coated fabric" or "sheets or film of plastic combined with textile material" within the meaning of Note 2(a)(1) and (3)to Chapter 59, HTSUSA, or is the fabric properly classified under heading 5407, HTSUSA, as "woven fabrics of synthetic filament yarn."
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. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI’s taken in order. The Explanatory Notes to the Harmonized Commodity Description and Coding System (ENs), which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRIs.
Chapter 59, HTSUSA, provides for "impregnated, coated, covered or laminated textile fabrics; textile articles of a kind suitable for industrial use." Specifically, Note 2(a) to Ch. 59 states in relevant part:
2. Heading 5903 applies to:
(a) 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:
(1) Fabrics in which the impregnation, coating or covering
cannot be seen with the naked eye ...
* * * * *
(3) Products in which the textile fabric is either completely
embedded in plastics or entirely coated or covered on
both sides with such material, provided that such coating
or covering can be seen with the naked eye with no account
being taken of any resulting change of color (chapter 39).
In order for styles N1053, N2372, N1084 to be classified in heading 5903, HTSUSA, the coating must be visible to the naked eye. Styles N1053 and N1084 have been coated with a clear substance. However, we note that like Headquarters Ruling (HQ) 955429, dated December 7, 1993, the fabric’s interstices have been filled with a PU coating. When held up to a source of light, the interstices in the uncoated samples permit light to shine through while the coated sample leaves no visible gaps in the weave of the fabric. This condition was previously held by Customs to be visible evidence of coating. See HQ 950022, dated September 26, 1991. Sample N2372 has a PU coating which has been pigmented white. Thus, the coating is clearly visible to the naked eye and meets the definition of Note 2(a), Ch. 59, HTSUSA.
To qualify for heading 3921, the textile material must be entirely covered on both sides or completely encased in plastic. Note 2 to Chapter 59, HTSUSA, which provides for impregnated, coated, covered, or laminated textile fabrics, applies to:
(a) Textile fabrics, impregnated, coated, covered, or laminated with
plastics, ...other than:
(3) Products in which the textile fabric is either completely
embedded in plastics or entirely coated or covered on
both sides with such material, provided that such coating
or covering can be seen with the naked eye with no account
being taken of any resulting change of color (chapter 39).
The protestant has claimed that Style N2369 has received a clear silicone elastomer coating on both sides of the fabric. However, this balloon cloth fabric was analyzed by the Customs laboratory and the report indicates that the silicone plastic is only present on one surface and only comprises 1% of the weight of the material, not the 16.5% as claimed by the manufacture. As such, this balloon fabric is not classifiable in Chapter 39. In this instance, HQ 955429 is applicable to balloon cloth fabric because we find that light filters through the uncoated sample while the coated sample is darker in color and more opaque. Style N2369 is also classifiable in Ch. 59.
It should also be noted that according to Customs laboratory report, with regard to Style N1053, it was determined that the yarns do not meet the criterion for high tenacity nylon as defined by the HTSUSA.
HOLDING:
The subject balloon cloth fabrics in Styles N1053, N3272, and N1084 are classifiable 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," in subheading 5903.20.2500, HTSUSA. The balloon cloth fabric in Style N2369 is classifiable in subheading 5903.90.2500, HTSUSA, as "Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902: Other: Other: Other." Both provisions are dutiable at 8.1 percent ad valorem under the general column one rate and the textile restraint category for each provision is 229.
Since reclassification of the merchandise as indicated above will result in a refund to the Protestant, you are instructed to allow the protest in full. A copy of this decision should be attached to the Form 19 Notice of Action.
In accordance with Section 3A(11)(b) of Customs Directive 099 3550 065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Diskette Subscription service, Freedom of Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division