H331151

HQ H331151 July 30, 2024 OT:RR:CTF:FTM H331151 TJS/TSM CATEGORY: Classification TARIFF NOs.: 5903.90.25; 5515.12.00 Ms. Angie Courteau LZB Manufacturing, Inc. One La-Z-Boy Drive Monroe, MI 48162 RE: Modification of NY N319028; Tariff Classification of Woven Upholstery Fabrics from China Dear Ms. Courteau: This is in response to your request, dated December 1, 2021, for reconsideration of New York Ruling Letter (“NY”) N319028, issued to you on April 30, 2021. In that ruling, U.S. Customs and Border Protection (“CBP”) classified five woven upholstery fabrics from China under the Harmonized Tariff Schedule of the United States (“HTSUS”). According to your request for reconsideration, you dispute CBP’s classification of three of the woven upholstery fabrics (Style N1829 (Moriarty), Style D1818 (Glossary), and Style J1819 (Fringe)) under subheading 5903.90.25, HTSUS, 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.” Upon review, we have found this classification for Style J1819 (Fringe) to be incorrect. For the reasons set forth below, we hereby modify NY N319028. 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. 103-182, 107 Stat. 2057), a notice was published in the Customs Bulletin, Vol. 57, No. 37, on October 11, 2023, proposing to modify NY N319028, and to revoke any treatment accorded to substantially identical transactions. No comments were received in response to the notice. FACTS: NY N319028 described the subject merchandise as follows: Style N1829 (Moriarty) is a woven fabric composed wholly of polyester textured filament yarns of different colors and weighs 525 g/m2. The fabric has an acrylic coating applied to the reverse side of the fabric that is visible to the naked eye. Style D1818 (Glossary) is a woven fabric of yarns of different colors composed of 54 percent polyester filament yarns and 46 percent polypropylene filament yarns. The fabric weighs 358 g/m2. The fabric has an acrylic coating applied to the reverse side of the fabric that is visible to the naked eye. Style J1819 (Fringe) is a woven fabric composed wholly of polyester yarns of different colors, of which 72 percent is staple fibers and 28 percent is filament yarns. The fabric weighs 482 g/m2. The fabric has an acrylic coating applied to the reverse side of the fabric that is visible to the naked eye. ISSUE: What is the tariff classification of the woven upholstery fabrics under the HTSUS? LAW AND ANALYSIS: Classification under the HTSUS is determined in accordance with the General Rules of Interpretation (“GRI”). 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. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to GRIs 1 through 5. The 2024 HTSUS headings under review are as follows: 5407 Woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404: 5515 Other woven fabrics of synthetic staple fibers: 5903 Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902: * * * 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, HTSUS, provides, in pertinent part, the following: 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 (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 subject fabrics have been coated with an acrylic coating. At issue is whether they are coated fabrics of Chapter 59, HTSUS, and whether, pursuant to Note 2(a)(1) to Chapter 59, HTSUS, they are products of heading 5903, HTSUS. Heading 5903, HTSUS, provides for the classification of “[t]extile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902.” According to Note 2(a)(1) to Chapter 59, for a fabric to be considered coated within the meaning of heading 5903, HTSUS, the coating must be visible to the naked eye (whatever the nature of the plastic material), but no account is to be taken of changes in color. Therefore, to determine whether these fabrics are classifiable in heading 5903, HTSUS, we must determine whether they are visibly coated with plastic. Although there is no definition within the HTSUS of whether or not a coating is “visible to the naked eye,” CBP has set forth a number of factors to consider when determining what constitutes a coating that can be seen with the naked eye within the meaning of Note 2(a)(1) to Chapter 59, HTSUS. In Headquarters Ruling Letter (“HQ”) HQ 955031, dated March 30, 1994, CBP stated: The sole criter[ion] 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 for the examiner to take the “effects” of plastic into account. Plastic coating will often result in a change of color, increase in the 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. Recently in HQ H314149, dated March 8, 2022, CBP elaborated on the factors CBP takes into consideration when determining whether a coating is visible to the naked eye under Note 2 to Chapter 59, HTSUS. These factors include whether the coating has visibly altered the surface of the fabric; whether the plastic is visible in the interstices of the fabric; whether the thread or weave is blurred or obscured; whether the surface of the fabric is leveled or smoothed; and whether the coating itself creates a distinct visible pattern. See HQ H314149 (citing HQ 961172 (Aug. 6, 1998); HQ 967884 (Oct. 26, 2005); and HQ W968381 (Nov. 20, 2007)). Additionally, CBP has previously compared uncoated samples to coated samples to determine whether the plastic application alters the surface of the fabric. See HQ 957850 (July 5, 1995); HQ 961172 (Aug. 6, 1998); HQ W968191 (Jan. 25, 2008); and HQ H330139 (June 13, 2023). For the purposes of Note 2(a)(1) to Chapter 59, HTSUS, and in deciding if the coating on subject fabrics is visible to the naked eye, we consider each of the above-referenced factors, which are not exclusive and none of which are determinative. See HQ W968300 (Feb. 8, 2007). In you

Classification under the HTSUS is determined in accordance with the General Rules of Interpretation (“GRI”). 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. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to GRIs 1 through 5. The 2024 HTSUS headings under review are as follows:5407 Woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404:5515 Other woven fabrics of synthetic staple fibers:5903 Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902: * * *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, HTSUS, provides, in pertinent part, the following: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 (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 subject fabrics have been coated with an acrylic coating. At issue is whether they are coated fabrics of Chapter 59, HTSUS, and whether, pursuant to Note 2(a)(1) to Chapter 59, HTSUS, they are products of heading 5903, HTSUS. Heading 5903, HTSUS, provides for the classification of “[t]extile f