HQ W968290

February 8, 2007

CLA-2 RR:CTF:TCM W968290 BtB

CATEGORY: Classification

TARIFF NO.: 5903.90.2500

Port Director

U.S. Customs and Border Protection

1901 Crossbeam Drive\
Charlotte, NC 28217

**RE**: Application for Further Review of Protest No. 1512-06-100039;
Classification of certain upholstery fabric with acrylic coating

Dear Port Director:

The following is our decision regarding the Application for Further
Review ("AFR") of Protest 1512-06-100039 that you forwarded to the
Office of Regulations and Rulings[^1] pursuant to 19 C.F.R. §174.26 on
June 27, 2006. We have completed our review of this protest and are
returning the protest and appropriate documents forwarded for review to
you along with directions for disposition of the protest, which are set
forth below.

FACTS:

Protest Number 1512-06-100039 was timely filed by counsel on behalf of
Global Textile Alliance, Inc. ("GTA" or "protestant"), on June 1, 2006.
The decision protested is the classification, rate and amount of duties
chargeable on twenty-two entries of certain fabric made through the Port
of Charlotte, North Carolina from March through June 2005.

At our request, protestant furnished us with a sample of this certain
fabric and represented that it was identical to the fabric that was
imported in the entries at issue. This fabric is a 100% polyester woven
fabric that is brown in color and is used in the manufacturing of
upholstery. One side of the fabric appears to have been brushed or
sanded, while the other side has a whitish, blotchy acrylic coating that
looks as if it has been sprayed on.

On the entries at issue, GTA classified this fabric in subheading
5515.12.0040, HTSUSA, which provides for: "Other woven fabrics of
synthetic staple fibers: Of polyester staple fibers: Mixed mainly or
solely with man-made filaments, Satin weave or twill weave." At the time
of the entries, merchandise classified in subheading 5515.12.0040,
HTSUSA, was subject to a column-one (general) rate of duty of 12% *ad
valorem* and fell into textile category 628.

Prior to their liquidation, GTA filed Supplemental Information Letters
("SILs") on the entries at issue, requesting that the classification of
the fabric be changed to subheading 5903.90.2500, HTSUSA, which provides
for: "Textile fabrics impregnated, coated, covered or laminated with
plastics, other than those of heading 5902: Other: Of man-made fibers:
Other: Other." At the time of the entries, merchandise classified in
subheading 5903.90.2500, HTSUSA, was subject to a column-one (general)
rate of 7.5% *ad valorem* and fell into textile category 229. CBP at the
Port of Charlotte reviewed the SILs, disagreed with the action
requested, and consequently notated "DISAGREE" on the adjustment
coversheet of each letter. The entries at issue liquidated on respective
dates in the period from January 13, 2006, through April 21, 2006, with
the fabric classified in subheading 5515.12.0040, HTSUSA.

Further review of Protest Number 1512-06-100039 was properly accorded to
GTA pursuant to 19 C.F.R. §174.24 because the decision against which the
protest was filed is alleged to be inconsistent with a ruling of the
Commissioner of Customs or his designee, or with a decision made at any
port with respect to the same or substantially similar merchandise. GTA
also complied with the requirements of 19 C.F.R. §174.25.

In an attachment to the legal argument (set forth in Section II, Block 7
of Protest Number 1512-06-100039), protestant states that the fabric at
issue is identified as "Sensations with Milky Coating," a fabric
previously classified by CBP in New York Ruling Letter ("NY") L82493,
issued February 15, 2005. In that ruling, CBP classified "Sensations
with Milky Coating" in subheading 5903.90.2500, HTSUSA.

Protestant explains why the fabric at issue was not classified pursuant
to the ruling letter at the time of entry:

> As a result of miscommunication between the importer and its broker,
> however, entries of "Sensations with Milky Coating" ... were
> mistakenly entered under HTSUS subheading 5515.12.00, dutiable at the
> rate of 12.0% ad valorem.

In its argument, protestant also points out that the commercial invoices
for each of the entries at issue describe the fabric as "100% PES
\[polyester\] Woven Fabric With Milky Coating" and indicate its
classification as "Tariff: 5903.90.2500." Our review of the commercial
invoices shows that the fabric at issue is also described as "Woven
Fabric #8862" and on one commercial invoice, classification numbers have
been crossed out and changed, with pen, to show "Tariff: 5903.90.2500."

ISSUE:\
\
What is the classification of the fabric at issue?

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General
Rules of Interpretation ("GRI"). GRI 1 provides, in part, that
classification decisions are to be \"determined according to the terms
of the headings and any relative section or chapter notes.\" If the
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 may
then be applied, in order.

The Harmonized Commodity Description and Coding System Explanatory Notes
("EN") constitute the official interpretation of the Harmonized System
at the international level (for the 4-digit headings and the 6-digit
subheadings) and facilitate classification under the HTSUSA by offering
guidance in understanding the scope of the headings and GRI. While
neither legally binding nor dispositive of classification issues, the EN
provide commentary on the scope of each heading of the HTSUSA and are
generally indicative of the proper interpretation of the headings. *See*
T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).

A product\'s classification is determined by first looking to the
headings and section or chapter notes. *See* [Orlando Food Corp. v.
United States]{.underline}, 140 F.3d 1437 (Fed. Cir. 1998). The headings
under consideration for classification of the fabric at issue are:
heading 5515, HTSUSA, which provides for: "Other woven fabrics of
synthetic staple fibers" and heading 5903, HTSUSA, which provides for:
"Textile fabrics impregnated, coated, covered or laminated with
plastics, other than those of heading 5902."

A fabric is considered a fabric of heading 5903, HTSUSA, if its
impregnation, coating or covering of plastics is visible to the naked
eye as required by Note 2(a)(1) to Chapter 59, HTSUSA, with no account
taken of any resulting change in color. It is CBP's longstanding view
that the wording of Note 2(a)(1), "visible to the naked eye," is a clear
expression by the drafters of the Harmonized System that a significant,
if not substantial, amount of material must be added to a fabric for it
to be considered impregnated, coated or covered. The plastics material
added to the fabric must be visibly distinguishable from that fabric
without the use of magnification. CBP believes this criterion is
satisfied when the application of plastics material visibly affects the
surface character of the fabric. In such an instance, the naked eye is
seeing the plastics. See, e.g., Headquarters Ruling Letter ("HQ")
967884, dated October 26, 2005, on the classification of certain pants;
HQ 082219, dated November 21, 1988, on the classification of three
fabrics; HQ 085245, dated August 31, 1989, on the classification of a
men\'s nylon coat made of certain coated fabrics; and HQ 087941, dated
December 12, 1990, on the classification of certain fusible interlining
fabrics from Japan.

We have examined the sample of the fabric provided by protestant (that
it represented is identical to the fabric that was imported in the
entries at issue) and found one side of the fabric to be visibly coated
with acrylic. Applying the "visible to the naked eye" test on the
submitted sample, using normally corrected vision in a well-lighted
room, the fabric's acrylic coating was visibly distinguishable from that
fabric without the use of magnification. The coating visibly affects the
surface character of the fabric, obscuring the underlying weave. As a
result, we find that the fabric has a plastic coating that is visible to
the naked eye and, accordingly, is classifiable in heading 5903, HTSUSA.
Because the fabric is coated, it is not provided for by heading 5515,
HTSUSA.

Because protestant has asserted that they are both the same, we have
compared the sample submitted by protestant in this matter against the
sample of fabric that we have on file of "Sensations with Milky Coating"
from NY L82493. Our review showed that the two samples are not
identical. The samples differ in color and coating. The sample submitted
by protestant in this matter is brown. The sample that was the subject
of NY L82493 is a light beige color. The coating of the sample from NY
L82493 also appears to be heavier than the coating on the fabric
submitted by protestant in the instant matter.

19 C.F.R. §177.9(b)(2), regarding the effect of tariff classification
rulings, states as follows:

> Each ruling letter setting forth the proper classification of an
> article under the provisions of the Harmonized Tariff Schedule of the
> United States will be applied only with respect to transactions
> involving articles identical to the sample submitted with the ruling
> request or to articles whose description is identical to the
> description set forth in the ruling letter.

Because the sample submitted by counsel in this matter differs from the
sample of fabric that was the subject of NY L82493, the ruling letter
(NY L82493) is not to be applied to the fabric at issue in this matter.
Please advise GTA not to continue to submit or attach NY L82493 to
future entries of the fabric at issue.

We understand that GTA may be importing fabrics with names that are
substantially similar (e.g., "#8862" and "#8862 with Milky Coating").
Please also advise GTA that, to prevent confusion going forward, it is
recommended that articles be described as fully and completely as
possible in ruling requests (by exact name, style number or both) and
that these descriptions match descriptions on commercial invoices
presented to CBP.

HOLDING:

The fabric at issue is classified in subheading 5903.90.2500, HTSUSA,
which provides for: "Textile fabrics impregnated, coated, covered or
laminated with plastics, other than those of heading 5902: Other: Of
man-made fibers: Other: Other." The applicable column one (general) rate
of duty on the dates of the entries at issue, was 7.5% *ad valorem*.
Duty rates are provided for your convenience and are subject to change.
The text of the most recent HTSUSA and the accompanying duty rates are
provided on the world wide web at www.usitc.gov.

Since reclassification of the merchandise as indicated above will result
in a lower rate of duty as claimed, you are instructed to allow the
protest in full. In accordance with Section IV of the [Customs
Protest/Petition Processing Handbook]{.underline} (CIS HB, January 2002,
pp. 18 and 21), 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 entries in accordance with the decision
must be accomplished prior to mailing of the decision.

No later than 60 days from the date of this letter, Regulations and
Rulings of the Office of International Trade will make the decision
available to CBP personnel, and to the public on the CBP Home Page on
the World Wide Web at www.cbp.gov, by means of the Freedom of
Information Act, and by other methods of public distribution.

> Sincerely,
>
> Myles B. Harmon, Director
>
> Commercial and Trade Facilitation Division

Enclosures

[^1]: Now known as Regulations and Rulings within the Office of
    International Trade.