H270911

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H270911 December 8, 2020 OT:RR:CTF:FTM H270911 JER CATEGORY: Classification/Origin TARIFF NO.: 5903.90.2500 Mr. Robert Leo Meeks, Sheppard, Leo & Pillsbury 570 Lexington Avenue, 24th Floor New York, NY 10022 RE: Modification of NY N267195; classification of foil print fabric Dear Mr. Leo: This is in response to your request of October 12, 2015, for reconsideration of New York Ruling Letter (“NY”) N267195, issued on September 10, 2015, to your client, Nipkow & Kolbelt, Inc., concerning the classification of certain merchandise under the Harmonized Tariff Schedule of the United States (“HTSUS”) and the eligibility of the merchandise for preferential tariff treatment under the United States-Korea Free Trade Agreement (“UKFTA”). In NY N267195, U.S. Customs and Border Protection (“CBP”) classified the imported fabric under heading 6004, HTSUS, in particular, under subheading 6004.10.8500, HTSUS, as, “Knitted or crocheted fabrics of a width exceeding 30 cm, containing by weight 5 percent or more of elastomeric yarn or rubber thread, other than those of heading 6001: Containing by weight 5 percent or more of elastomeric yarn but not containing rubber thread, Other.” CBP also determined that the merchandise was not eligible for preferential tariff treatment under the UKFTA and found that the country of origin of fabric was the Republic of Korea (“South Korea”). It is your contention that heading 6004, HTSUS, is not the proper heading because it does not describe the merchandise at issue. You contend that the merchandise is properly classified under heading 5903, HTSUS, as a textile fabric, which has been coated or covered with plastics. Upon additional review, we have found the classification under heading 6004, HTSUS, to be incorrect. In reaching our decision, we considered the information presented in your October 12, 2015 submission as well as the sample submitted to our office on March 19, 2020. For the reasons set forth below, we hereby revoke NY N267195 with respect to the classification of the foil-printed fabric and the eligibility of the subject merchandise for the preferential tariff treatment under the UKFTA and modify NY N267195 with respect to the analysis of the country of origin, utilizing the correct classification. Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. § 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed action was published on October 14, 2020, in Volume 54, Number 40, of the Customs Bulletin. No comments were received in response to this notice. FACTS: In NY N267195, CBP described the subject merchandise, referred to as the Variflex Mystique fabric, as follows: Style Varsiflex Mystique is a heavy knit fabric, foil-printed on one surface with a pattern of small dots arranged in a series of concentric semi-circles in a swirling design reminiscent of a fingerprint’s whorl inside a loop. According to the information provided, this fabric is of weft knit construction, composed of 88% polyester and 12% spandex (elastomeric) yarns and weighing 306 g/m2. You state that this fabric will be imported into the United States in widths of 58 to 60 inches, and will be used for apparel. NY N267195 described the manufacturing process of the Variflex Mystique fabric as follows: (1) Polyester yarns are imported into South Korea from Taiwan; (2) Elastomeric yarns are extruded in South Korea from resin chips from South Korea or China; (3) Fabric is knitted in South Korea; (4) Greige fabric is piece-dyed in South Korea; (5) Fabric is foil-printed with polyester plastic dots in South Korea; (6) All subsequent finishing operations are performed in South Korea; and, (7) Fabric is exported directly to the United States. In your 2015 submission the Variflex Mystique fabric is described as being piece dyed and then coated with foil on one side with small closely spaced dots, approximately 0.25 millimeters (mm), which are composed of polyester plastic. The plastic application comprises approximately less than 70 percent by weight of the total weight of the material. ISSUES: 1) Whether the subject merchandise is classifiable under heading 5903, HTSUS, as a textile fabric coated with plastic, or whether the subject merchandise is precluded from heading 5903, HTSUS, by application of Note 2(a)(4) to Chapter 59 and therefore classifiable under heading 6004, HTSUS. 2) Whether the subject merchandise qualifies for preferential tariff treatment under the UKFTA. 3) What is the country of origin of foil print fabric? LAW AND ANALYSIS: 1) Whether the subject merchandise is classifiable under heading 5903, HTSUS, as a textile fabric coated with plastic, or whether the subject merchandise is precluded from heading 5903, HTSUS, by application of Note 2(a)(4) to Chapter 59 and therefore classifiable under heading 6004, HTSUS. Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRIs”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that 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 GRIs 2 through 6 may then be applied in order. The 2020 HTSUS provisions under consideration are as follows: 5903 Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902: * * * 5903.90 Other: Of man made fibers: Other… 5903.90.25.00 Other… * * * 6004 Knitted or crocheted fabrics of a width exceeding 30 cm, containing by weight 5 percent or more of elastomeric yarn or rubber thread, other than those of heading 6001: 6004.10.00 Containing by weight 5 percent or more of elastomeric yarn but not containing rubber thread… 6004.10.0085 Other… * * * U.S. Note 2(a)(4) to Chapter 59, HTSUS, provides, in pertinent part, as follows: (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 (usually chapters 50 to 55, 58 or 60): for the purposes of this provision, no account should be taken of any resulting change in color; (2) Products which cannot, without fracturing, be bent manually around a cylinder of a diameter of 7 mm, at a temperature between 15 C and 30 C (usually chapter 39); (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); (4) Fabrics partially coated or partially covered with plastic and bearing designs resulting from these treatments (usually chapters 50 to 55, 58 or 60); […] * * * The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding or 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 (August 23, 1989). The EN to 5903, HTSUS, states, in relevant part, that: 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: (1) That, in the ca

1) Whether the subject merchandise is classifiable under heading 5903, HTSUS, as a textile fabric coated with plastic, or whether the subject merchandise is precluded from heading 5903, HTSUS, by application of Note 2(a)(4) to Chapter 59 and therefore classifiable under heading 6004, HTSUS. Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRIs”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that 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 GRIs 2 through 6 may then be applied in order.The 2020 HTSUS provisions under consideration are as follows:5903 Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902: * * *5903.90 Other: Of man made fibers: Other…5903.90.25.00 Other… * * *6004 Knitted or crocheted fabrics of a width exceeding 30 cm, containing by weight 5 percent or more of elastomeric yarn or rubber thread, other than those of heading 6001: 6004.10.00 Containing by weight 5 percent or more of elastomeric yarn but not containing rubber thread…6004.10.0085 Other…* * * U.S. Note 2(a)(4) to Chapter 59, HTSUS, provides, in pertinent part, as follows:(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 (usually chapters 50 to 55, 58 or 60): for the purposes of this provision, no account should be taken of any resulting change in color; (2) Products which cannot, without fracturing, be bent manually around a cylinder of a diameter of 7 mm, at a temperature between 15 C and 30 C (usually chapter 39); (3) Product