HQ H257262
CLA-2 OT:RR:CTF:TCM HQ H257262 TSM
Port Director, Port of Dallas/Fort Worth
U.S. Customs and Border Protection
7501 Esters Blvd.
Suite 160
Irving, TX 75063
Attn: Holly Bennett, Senior Import Specialist
Re: Protest and Application for Further Review No. 5501-13-150007; Classification of certain cotton woven fabrics with clear coating.
Dear Port Director:
The following is our decision regarding Protest and Application for Further Review No. 5501-13-150007, timely filed by DJS International Services, Inc., on July 8, 2013, on behalf of United Notions, Inc., (“Protestant”) regarding the tariff classification of certain cotton woven fabrics with clear coating under the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
The subject merchandise consists of the “Boo Crew” and “Sunnyside” fabric lines. The “Boo Crew” fabric line, style SPGP06020, printed with Halloween colors and themes, features a transparent but very shiny polyvinyl chloride (PVC) coating, applied to one side only. The “Sunnyside” fabric line, style SPGT6020, printed in patterns of green and blue, features a clear but dull polyurethane (PU) coating, also applied to one side only. Both fabrics were entered, under entry numbers 201-22332421 and 201-22333833, on or about August 1, 2012 and August 23, 2012, under subheading 5209.51.60, HTSUS, as “woven fabrics of cotton, containing 85 percent or more by weight of cotton, weighing more than 200 g/m² (con.): printed: plain weave: certified hand-loomed fabrics.” Both fabrics were liquidated as entered, on June 14, 2013 and July 5, 2013.
Protestant claims that both fabrics are classified in heading 5903, HTSUS, as coated fabrics. Specifically, Protestant claims that the “Boo Crew” line is classified in subheading 5903.10.10, HTSUS, as “textile fabrics impregnated, coated, covered or laminated with plastics…: with poly(vinyl chloride): of cotton.” Protestant further claims that the “Sunnyside” fabric line is classified in subheading 5903.20.10, HTSUS, as “textile fabrics impregnated, coated, covered or laminated with plastics…: with polyurethane: of cotton.”
ISSUE:
Whether the “Boo Crew” and “Sunnyside” fabrics are classified in heading 5209, HTSUS, as woven fabrics of cotton, or in heading 5903, HTSUS, as textile fabrics impregnated, coated, covered or laminated with plastics.
LAW AND ANALYSIS:
Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a) (2) as a decision on classification. The protest was timely filed on July 8, 2013, within 180 days of liquidation of the first entry. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2) (B) (ii), (iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006)).
Further Review of Protest No. 5501-13-150007 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24 (a) because Protestant alleges that the decision against which the protest was filed is inconsistent with Headquarters Ruling Letter (HQ) W968381, dated November 20, 2007.
Merchandise imported into the United States is classified under HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order.
The HTSUS provisions under consideration are as follows:
5209 Woven fabrics of cotton, containing 85 percent or more by weight of cotton, weighing more than 200 g/m²:
Printed:
5209.51 Plain weave:
5209.51.60 Other
5903 Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902:
5903.10 With poly(vinyl chloride):
5903.10.10 Of cotton
5903.20 With polyurethane:
5903.20.10 Of cotton
In addition to the terms of the headings, classification of goods under the HTSUS is governed by any applicable section or chapter notes. Note 2 to chapter 59, provides, in pertinent part, the following:
2. Heading 5903 applies to:
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:
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[.]
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 59.03 states, in pertinent part, the following:
This heading covers textile fabrics which have been impregnated, coated, covered or laminated with plastics (e.g., poly(vinyl chloride)).
Such products are classified here whatever their weight per m² and whatever the nature of the plastic component (compact or cellular), provided:
That, in the case of impregnated, coated or covered fabrics, the impregnation, coating or covering can be seen with the naked eye otherwise than by a resulting change in colour.
Textile fabrics in which the impregnation, coating or covering cannot be seen with the naked eye or can be seen only by reason of a resulting change in colour usually fall in Chapters 50 to 55, 58 or 60. Examples of such fabrics are those impregnated with substances designed solely to render them crease proof, moth proof, unshrinkable or waterproof (e.g., waterproof gabardines and poplins). Textile fabrics partially coated or partially covered with plastics and bearing designs resulting from these treatments are also classified in Chapters 50 to 55, 58 or 60.
As noted above, the subject merchandise was originally entered under heading 5209, HTSUS, as “woven fabrics of cotton, containing 85 percent or more by weight of cotton, weighing more than 200 g/m².” Protestant claims that both fabrics are classified in heading 5903, HTSUS, as “textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902.”
It is undisputed that the subject fabrics have been coated with a polyvinyl chloride (PVC) or polyurethane (PU) layer. At issue is whether they are coated fabrics of Chapter 59, and whether, pursuant to Note 2(a)(1) to Chapter 59, they are products of heading 5903, HTSUS. CBP determines whether fabrics are coated for purposes of classification under heading 5903, HTSUS, based on whether the plastic coating is visible to the naked eye.
Although there is no definition in the HTSUS of whether or not a coating is visible to the naked eye, CBP has set forth factors to consider when determining what constitutes a coating that can be seen with the naked eye within the meaning of Chapter 59, Note 2(a)(1). In Headquarters Ruling Letter (HQ) 955031, dated March 30, 1994, CBP stated:
The sole criteria 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.
The following rulings also provide guidance on the factors giving rise to coatings which are visible to the naked eye: HQ 083194, dated December 18, 1989 (the pattern on the fabric was obscured and the plastic coating filled the intersections of the weave); HQ 086846, dated July 23, 1990 (the plastic was visible at the interstices of the yarns when the fabric was held up to the light); HQ 957850, dated July 5, 1995 (wherein a plastic coating was clearly visible when viewed in cross section); HQ 088769, dated May 23, 1991 (a partial obscuring of the underlying weave pattern was attributable to the coating and found to be an indication of a visible coating); HQ 950022, dated September 26, 1991 (where all interstices of fabric weave were filled with polyurethane so as to leave no gaps was found to have visible coating. However, when noticeable gaps were found in the fabric weave where plastic had not occluded, the fabric was found not to be visibly coated); HQ 952705, dated January 22, 1993 (the dull appearance of fabric was not an indication of visible coating); HQ 953407, dated July 12, 1993 (visible coating was found where the coating "blurred the surface of the fabrics"); HQ 950468, dated January 2, 1992 (a visible coating was found where the plastic coating changes the visual or surface characteristics of the fabric).
Additionally, Protestant cites HQ W968381, dated November 20, 2007, in which CBP found that in making determinations regarding whether coating is visible to the naked eye as required by note 2 to chapter 59, a number of factors may be considered, including the following:
Whether the coating has visibly altered the surface of the fabric (See HQ 967884, dated October 26, 2005);
Whether the plastic is visible in the interstices of the fabric (See HQ 961172, dated August 6, 1998);
Whether the thread or weave is blurred or obscured (See HQ W968381, dated November 20, 2007); and
Whether the surface of the fabric is leveled or smoothed and whether the coating itself creates a distinct visible pattern (Id.)
For purposes of Note 2(a)(1) to Chapter 59, and in making a determination as to whether the coating on the subject fabrics is visible to the naked eye, we consider the above-referenced factors, which are not exclusive and neither of which is determinative. See HQ W968300, dated February 8, 2007.
Upon examination of the sample of the “Boo Crew” fabric, we note that the surface of the fabric appears to be flattened out as the over and under weave is not visible on the surface. Moreover the interstices (the yarn intersections) appear in spots to be filled in with the coating and some visible bubbles are present. Applying the above factors to this fabric, we find that the sample is visibly coated with plastic within the meaning of the HTSUS, and that it is not excluded from heading 5903, HTSUS, by Note 2(a)(1) to chapter 59, HTSUS. Therefore, we conclude that it is classified in heading 5903, HTSUS, as “textile fabrics impregnated, coated, covered or laminated with plastics.” See also NY I84427, dated July 31, 2002; NY F82604, dated February 8, 2000; and NY E86228, dated August 26, 1999.
Upon examination of the sample of the “Sunnyside” fabric, we note that while the surface of the fabric may have a flattened weave, there are no other indications of a visible coating. The polyurethane coating has not blurred or obscured the underlying weave of the fabric. Nor is the plastic coating visible at the intersections of the weave. This is consistent with CBP precedence that the coating itself, and not just the coating effects, may be considered to determine whether or not a coating is visible to the naked eye. See e.g., HQ 089545, dated August 30, 1991 (there was no visible indication, e.g. “blurring” or “obscuring” of the weave pattern, that the fabric was coated); HQ 952697, dated January 12, 1993 (presence of a “sheen” was deemed insufficient evidence of a visible coating); and HQ 954825, dated December 8, 1993 (the mere effects of coating, such as “stiffness” or “sheen” are not grounds for determining the coating is visible). Accordingly, we find that this sample is not visibly coated with plastic within the meaning of the HTSUS, and that it is excluded from heading 5903, HTSUS, by Note 2(a)(1) to chapter 59, HTSUS. Therefore, we conclude that this fabric is classified in heading 5209, HTSUS, as “woven fabrics of cotton, containing 85 percent or more by weight of cotton, weighing more than 200 g/m².”
HOLDING:
By application of GRI 1 (Note 2(a)(1) to chapter 59) and GRI 6, the “Boo Crew” fabric line, style SPGP06020, is classified in heading 5903, HTSUS, and specifically in subheading 5903.10.10, HTSUS, as “textile fabrics impregnated, coated, covered or laminated with plastics…: with poly(vinyl chloride): of cotton.” The “Sunnyside” fabric line, style SPGT6020, is classified in heading 5209, HTSUS, and specifically in subheading 5209.51.60, HTSUS, as “woven fabrics of cotton, containing 85 percent or more by weight of cotton, weighing more than 200 g/m² (con.): printed: plain weave: certified hand-loomed fabrics.”
You are instructed to DENY the protest, except to the extent reclassification of the merchandise as indicated above results in a net duty reduction and partial allowance.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP website at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Joanne Roman Stump, Acting Director
Commercial and Trade Facilitation Division