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HQ 084318


APRIL 20, 1990

CLA-2 CO:R:C:G 084318 PR

CATEGORY: CLASSIFICATION

TARIFF NO.: 7019.20.5000; 338.27

Area Director of Customs
New York Seaport
6 World Trade Center
New York, New York 10048

RE: Tariff Status of Certain Woven Glass Fabric

Dear Sir:

This ruling is in response to Internal Advice Request No. 6/89, which was initiated by Mohawk Customs and Shipping Corp. on behalf of T.B.A. Industrial Products Ltd., Lancashire, England, and concerns the classification of certain woven glass fiber fabrics.

FACTS:

The submitted samples are woven fabrics made from glass fiber yarns. Their trade name is Fortaglas and they are used in a variety of applications requiring heat resistance. The natural color of glass fibers is white; however, as imported, the fabrics are varying shades of brown because they have been impregnated with inorganic chemicals to increase their thermal resistance.

ISSUE:

The issue presented by the instant inquiry is whether the subject fabrics are classifiable as colored glass fiber fabrics, in Subheading 7019.20.50, Harmonized Tariff Schedule of the United States (HTSUS), and item 338.27, Tariff Schedules of the United States (TSUS), or as glass fiber fabrics, not colored, in Subheading 7019.20.20, HTSUSA, and item 338.25, TSUS.

LAW AND ANALYSIS:

It is asserted by the inquirer that the merchandise should not be classified as "colored" because the change in color is an unavoidable end result of the processes necessary to the fabrics' intended functions and that the color confers no benefit to the product.

Classification under the TSUS

Glass fiber fabrics were classifiable under the TSUS, which ceased being in effect January 1, 1989, as textiles and subject to the definition of "colored" contained in Headnote 2(b), Schedule 3, TSUS. That headnote defines "colored" as follows.
the term "colored, as used in connection with textile materials or textile articles means that they have been subjected to a process such as, but not limited to, dyeing, staining, painting, printing, or stenciling, in which color is imparted at any stage of manufacture to all or part of the fiber, yarn, fabric, or other textile article, except identification yarns and except marking in or on selvages.

Since the subject fabrics have had color imparted by a process performed during their manufacture, those fabrics are "colored" within the purview of Headnote 2(b).

Classification under the HTSUS

Under the HTSUS, which superceded the TSUS, glass fiber fabrics are not classifiable as textiles. Another difference between the TSUS and the HTSUS is that the HTSUS has no specific definition for the word "colored". In Section XI, HTSUS, where most of the provisions for textiles and textile products are located, Subheading Note 1 contains definitions for "Dyed woven fabrics" and "Woven fabrics of yarns of different colors". However, the subject fabric does not fall within either of those categories and neither of those definitions is helpful in this circumstance.

In T.D. 19423 (1898), it was determined that "colored" includes the imparting of color by methods other than dyeing. Therefore, the cotton fabrics which were the subject of that decision and which, because of the process of mercerization, were noticeably darker than unprocessed fabrics, were ruled to be "colored" for tariff purposes.

[C]otton cloth which may be "colored," or its color changed by any process of manufacture from the natural color, tint, or tinge of the gray cloth, becomes subject to the same rate of duty as though the change in color had been effected by the process of dyeing. This is no less the case whether the purpose of the processes [sic] is to change the color or such change is merely an incident or accident of that process.

In T.D. 32419 (1912), unbleached mercerized cotton cloth was determined to be not colored because the existing tariff distinguished between colored and mercerized fabrics. In Davison v. United States, 2 Ct. Cust. Appls. 78, T.D. 31631 (1911), the court held that the word colored is a "participial adjective" and that the origin of the color or the method of its production does not enter into the essential meaning of the term. See also T.D. 35747.

HOLDING:

In view of the above, the subject merchandise is presently classifiable under the provision for colored woven fabrics of glass fibers, in Subheading 7019.20.50, HTSUS. Prior to January 1, 1989, the fabric was classifiable under the provision for colored woven glass fiber fabrics, in item 338.27, TSUS.

A copy of this ruling should be furnished to the initiator of this Internal Advice Request.

Sincerely,

Jerry Laderberg

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