- A change in the surface character of the fabric (HQ 082219, November 11, 1988)
- The coating fills the interstices where the yarns intersect (HQ 961172, August 6, 1998)
- The coating blurs or obscures the weave (HQ 089772, September 11, 1991)
No account should be taken of any resulting change in only shine, reflectivity, dullness or other property which causes the viewer to see the effect rather than presence of plastic material. See HQ 967884, dated October 26, 2005.
The question of whether a fabric is properly classified in Chapter 59 or elsewhere in the tariff schedule is particularly significant in the case of apparel or textile products imported from a free trade partner as, in many cases, the rule of origin for the finished product is "cut-and-sew" in the case of apparel or textile products made of coated fabric and yarn-forward for good made of most other fabrics.
In a recent CBP Bulletin (Vol. 47, June 26, 2013, No.27) CBP announced the modification of a ruling letter relating to a particular type of garment made in Canada.
In Binding Ruling NY N068477, dated August 6, 2009, CBP determined that, with regard to a certain Tactical Operations Dry Suit, the plastic coating of the outer shell fabric of the garment is not visible to the naked eye in cross section. CBP further determined that this product was classified in heading 6211, HTSUS, specifically 6211.43.0010, HTSUS, which provides for: "Track suits, ski-suits and swimwear; other garments: Other garments, women's or girls': Of man-made fibers". Finally, CBP determined that this product did not satisfy the requirements of General Note (GN) 12, HTSUS, and was therefore ineligible for treatment under the North American Free Trade Agreement (NAFTA).
It is now CBP's position that this product is properly classified in heading 6210, HTSUS, specifically 6210.50.50, HTSUS, which provides for "Garments, made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907: Other women's or girls' garments: Of man-made fibers: Other". Furthermore, it is now CBP’s position that the product does satisfy the requirements of GN 12, HTSUS, and is therefore eligible for treatment under NAFTA.
The outer shell of the garment is composed of a laminated fabric consisting of a top layer of nylon woven fabric, a middle layer of ePTFE, and a bottom layer of polyester knit fabric. The importer asserted that, because this outer shell fabric is properly classified under heading 5903, HTSUS, as a coated fabric that the instant product is properly classified under heading 6210, HTSUS, which provides, in pertinent part for "Garments, made up of fabrics of heading … 5903 …". However, in NY N068477, CBP stated that this outer shell fabric was excluded from heading 5903, HTSUS, by Note 2(a)(1) to Chapter 59, HTSUS, because the plastic could not be seen with the naked eye. CBP also found that the outer shell fabric was properly classified under heading 5407, HTSUS, which provides for "Woven fabrics of synthetic filament yarn …". When reviewing fabrics assembled in layers under Note 2(a)(1) to Chapter 59, HTSUS, CBP examines the fabrics to ascertain whether the plastics layer is visible in the cross-section to the naked eye. See HQ H005538, dated November 30, 2007; HQ W968304, dated December 1, 2006; NY M82475, dated August 29, 2006; NY L80809, dated December 28, 2004. Additionally, CBP examines whether the plastics layer is visible through one of the assembled layers of fabric. In situations where one of the fabrics is of a loosely knitted or woven construction that allows the coating to be seen through that layer of fabric, CBP has considered such coating to be "visible to the naked eye." See HQ H005538; NY L89462, dated January 13, 2006; NY K87940, dated July 23, 2004 (both in which CBP found plastic film to be visible through a knit layer). Upon further review of the samples submitted on February 8, 2011, CBP has determined that the ePTFE plastic layer is visible to the naked eye through the knit polyester layer. Therefore, because the outer shell fabric is a plastic laminated textile fabric, in which the plastic layer is visible to the naked eye, it is properly classified under heading 5903, HTSUS. See also EN to heading 59.03; HQ H005538. Furthermore, in accordance with T.D. 91–97 and GRI 3(b), the garment is properly classified under heading 6210, HTSUS, which provides for "Garments, made up of fabrics of heading … 5903 …", because its outer shell is classifiable under heading 5903, HTSUS. See also HQ H042543; HQ 080817.
The relevant NAFTA rule states that a good shall be originating if there is "A change to headings 6208 through 6210 from any other chapter, except from headings 5106 through 5113, 5204 through 5212, 5307 through 5308 or 5310 through 5311, chapter 54, or headings 5508 through 5516, 5801 through 5802 or 6001 through 6006, provided that the good is both cut and sewn or otherwise assembled in the territory of one or more of the NAFTA parties.
As discussed above, this product is properly classified in heading 6210, HTSUS, and its outer shell fabric is properly classified under heading 5903. Therefore, the requirements of GN 12(t)/62.32C, HTSUS, are satisfied, because the component which determines the tariff classification of the good (the outer shell fabric) shifts from heading 5903, HTSUS, to heading 6210, HTSUS. See also GN 12(t)/62, Chapter Rule 3, HTSUS. The Style MSD577vSR product satisfies the requirements of GN 12(t), HTSUS. As such, it also satisfies the requirements of GN 12(b)(ii)(A), HTSUS, and is deemed to be NAFTA originating.
To see the complete text of CBP's modification of the ruling click here, the modification begins on page 50 and continues to the end of the document on page 62.