Reconsideration of NY K87202, dated July 16, 2004; Classification of woven fabric impregnated or coated with resorcinol formaldehyde latex

HQ 967341 February 4, 2005 CLA-2 RR:CR:TE 9673241KSH TARIFF NO.: 5911.40.0000 Mr. John M. Peterson, Esq. Neville Peterson LLP 17 State Street, 19th Floor New York, NY 10004 RE: Reconsideration of NY K87202, dated July 16, 2004; Classification of woven fabric impregnated or coated with resorcinol formaldehyde latex Dear Mr. Peterson: This letter is in response to your request of October 2, 2004, for reconsideration of NY K87202, dated July 16, 2004, as it pertains to the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of certain plain woven polyester fabrics which have been treated with resorcinol formaldehyde latex (RFL). Samples of the fabric before treatment with RFL, with treatment of RFL and after coating with rubber have been submitted with your request and have been considered accordingly.  FACTS: In New York Ruling Letter (NY) K87202, dated July 16, 2004, certain plain woven polyester fabrics which have been treated with RFL were classified in subheading 5407.10.0090, HTSUSA, which provides for woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404, woven fabrics obtained from high tenacity yarn of nylon or other polyamides or of polyesters. The rate of duty is 13.6 percent ad valorem. The submitted sample at issue is referenced as EP 050.65. It is a plain woven fabric comprised of 63.7% filament polyester and 36.3% filament yarn. It contains 16.2 warp ends per centimeter and 5.5 filing picks per centimeter. The warp is manufactured using 1000 denier polyester filament yarns with a tenacity of 75 centinewtons per tex while the filing contains 1680 denier filament nylon yarns with a tenacity of 80 centinewtons per tex. The fabric weighs approximately 549g/m2, the product will be imported in a variety of widths and thickness ranging from 0.75mm to .91mm. Prior to importation the fabric is coated on both sides with a solution containing RFL. The coating is not visible to the naked eye except for a change in color. The RFL gives the fabric a surface texture which promotes the bonding of the fabric to rubber. After importation the fabric will be bonded to sheets of rubber and used in the manufacture of carcasses for power transmission and conveyor belting, hoses, gaskets and tire cords.  ISSUE: Whether the plain woven polyester fabric treated with RFL is classified in heading 5911, HTSUSA, or in heading 5407, HTSUSA. LAW AND ANALYSIS: Classification under the HTSUSA is made 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 GRI may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, 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 GRI. It is your position that the fabric should be classified in heading 5911, HTSUSA because it has been coated with RFL and is used for a technical purpose, namely “to enhance the adhesive properties of the textile in order for the textile to combine easily and adhere strongly to a rubber surface. Chapter 5911, HTSUSA, provides for textile products and articles for technical uses so long as they are specified in Note 7 to Chapter 59. Note 7 to Chapter 59 reads:Heading 5911 applies to the following goods, which do not fall in any other heading of section XI:(a) Textile products in the piece, cut to length or simply cut to rectangular (including square) shape (other than those having the character of the products of headings 5908 to 5910), the following only: (i) Textile fabrics, felt and felt-lined woven fabrics, coated, covered or laminated with rubber, leather or other material, of a kind used for card clothing, and similar fabrics of a kind used for other technical purposes, including narrow fabrics made of velvet impregnated with rubber, for covering weaving spindles (weaving beams); (ii) Bolting cloth; (iii) Straining cloth of a kind used in oil presses or the like, of textile material or of human hair; (iv) Flat woven textile fabric with multiple warp or weft, whether or not felted, impregnated or coated, of a kind used in machinery or for other technical purposes; (v) Textile fabric reinforced with metal, of a kind used for technical purposes; (vi) Cords, braids and the like, whether or not coated, impregnated or reinforced with metal, of a kind used in industry as packing or lubricating materials. (b) Textile articles (other than those of headings 5908 to 5910) of a kind used for technical purposes (for example, textile fabrics and felts, endless or fitted with linking devices, of a kind used in paper-making or similar machines (for example, for pulp or asbestos-cement), gaskets, washers, polishing discs and other machinery parts). In order for a fabric to be classified in heading 5911, HTSUSA, two prerequisites need be met: 1) the fabric must be for technical use; and 2) the fabric must be one of the fabrics enumerated in Note 7(a) (i) through (vi). There is no dispute that the fabric is one of those enumerated in Note 7(a), but the fabric must also be for technical uses before it can be classified in heading 5911, HTSUSA. The term “for technical uses” is not defined in the section or chapter notes. However, the ENs to heading 5911 HTSUSA, state that “textile products and articles of this heading present particular characteristics which identify them as being for use in various types of machinery, apparatus, equipment or instruments or as tools or parts of tools.” You posit that the fabric’s capacity of enhanced adhesion is a “technical use” for purposes of heading 5911, HTSUSA. This office has been unable to locate any rulings which would support this interpretation. Rather, CBP has only classified textile products and articles with characteristics which would identify them as being for use in machinery, apparatus, equipment or instruments or as tools or parts of tools in heading 5911, HTSUSA. See HQ 957059, dated January 18, 1995, HQ 805335, dated January 11, 1995 and HQ 967110, dated August 24, 2004. The fabric’s ability to enhance adhesion to rubber does not identify it as being for use in machinery, apparatus, equipment or instruments or as tools or parts of tools. The fabric must have the essential character of a made up article or must be advanced beyond the stage of fabric to a fabric which is identifiable as being for use in machinery, apparatus, equipment or instruments or as tools or parts of tools. This does not happen until the fabric adheres to the rubber after importation when it then becomes identifiable as being for use in the manufacture of carcasses for power transmission and conveyor belting, hoses, gaskets and tire cords. You have not provided this office with information which would indicate that the RFL coated fabric without the rubber remains identifiable as being for use in the above mentioned applications. This is consistent with our classification of substantially similar RFL coated fabrics in HQ 966534, HQ 966535 and HQ 966536, dated November 6, 2003. This rationale was further supported by the holding in Filmtec Corp. v. United States, 293 F. Supp. 2d 1364 (2003). In Filmtec, the Court of International Trade held that a non-woven textile sheet imported in rolls that was coated to produce a membrane to be used as a filter medium after importation lacked the essential character of the finished article, i.e., the ability function as a filter medium in the condition as imported and accordingly, did not fall within heading 5911, HTSUSA. So too, the RFL coated fabric in the condition as imported lacks the essential character necessary to identify as being for technical uses, i.e. for use in manufacture of carcasses for power transmission and conveyor belting, hoses, gaskets and tire cords. Thus, the RFL coated fabric is not classifiable in heading 5911, HTSUSA. Heading 5407, HTSUSA, provides for "Woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404." The EN to heading 5407 indicate that the heading covers "a very large variety of dress fabrics, linings, curtain materials, furnishing fabrics, tent fabrics, parachute fabrics, etc." Thus, the provision is not limited by its terms to woven fabrics for any particular application or type of application. Accordingly, the fabric treated with RFL is properly covered under heading 5407, HTSUSA. HOLDING: The plain woven polyester fabric coated with RFL is classified in subheading 5407.10.0090, HTSUSA, which provides for “woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404, woven fabrics obtained from high tenacity yarn of nylon or other polyamides or of polyesters." The general column one rate of duty is 13.6 percent ad valorem. Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact the local CBP office prior to importation of this merchandise to determine the current status of any import restraints or requirements. Sincerely, Myles B. Harmon, Director Commercial Rulings Division