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NY I80118




April 15, 2002

CLA2-RR:NC:TA:352 I80118

CATEGORY: CLASSIFICATION

Mr. Douglas Puehlhorn
NEXTEC Applications Inc.
2611 Commerce Way
Vista, CA 92083

RE: Classification and country of origin determination for two dyed plain woven 100% textured filament polyester fabrics; 19 CFR 102.21(c)(2); tariff shift

Dear Mr. Puehlhorn:

This is in reply to your letter dated March 25, 2002, requesting a classification and country of origin determination for two 100% textured filament polyester woven fabrics which will be imported into the United States. The samples are being returned as requested.

FACTS:

Two samples of woven fabric accompanied your request for a ruling. The first, designated as style Guardian Polyester, Raw, is a dyed plain woven fabric composed of 100% textured filament polyester. It contains 58 single yarns per centimeter in the warp and 28 single yarns per centimeter in the filling. This product is manufactured using 75 denier yarns in the warp and 150 denier yarns in the filling. Weighing approximately 100 g/m2, this product will be imported in 157 centimeter widths.

Style Guardian Polyester, Encapsulated, is a dyed plain woven fabric composed of 100% textured filament polyester. It contains 58 single yarns per centimeter in the warp and 28 single yarns per centimeter in the filling. This product is manufactured using 75 denier yarns in the warp and 150 denier yarns in the filling. Weighing approximately 132 g/m2, this product will be imported in 157 centimeter widths. This product has been coated or impregnated with a plastic material however the coating or impregnation is not visible to the naked eye except by a change in color.

The manufacturing operations for the two fabrics are as follows:

Yarns are extruded in Malaysia from Malaysian polyester plastic resin. Yarns are texturized in Malaysia.
Both fabrics are woven in Malaysia including warping, sizing and weaving. Both fabrics are finished in Malaysia by desizing, dyeing and finishing. Style Guardian Polyester, Raw is then exported to the United States, where it undergoes a coating process before being sold to the ultimate purchaser. Style Guardian Polyester, Encapsulated is shipped to Singapore where it is coated or impregnated with plastic in an encapsulating process that both coats the fiber with plastic and produces a plastic barrier in the voids between yarns. The encapsulated fabric (style Guardian Polyester, Encapsulated) is then exported to the United States for sale to the ultimate purchaser.

ISSUE:

What are the classification and country of origin of the subject merchandise?

CLASSIFICATION:

Note 2 to Chapter 59, Harmonized Tariff Schedule of the United States, (HTS), defines the scope of heading 5903, under which textile fabrics which are coated, covered, impregnated, or laminated with plastics are classifiable. In addition, it provides guidance on the classification of combinations of textile and plastics. Note 2 states in part that heading 5903, HTS, 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 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);

Since the coating on Style Guardian Polyester, Encapsulated is not visible to the naked eye except for a change in color, it is not considered a coated fabric either for the purposes of classification in heading 5903, HTS, as a coated fabric of textile nor as a plastic product of chapter 39.

The applicable subheading for the both plain woven fabrics designated as styles Guardian Polyester, Raw and Guardian Polyester, Encapsulated will be 5407.52.2020, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404, other woven fabrics, containing 85 percent or more by weight of textured polyester filaments, dyed, other, weighing not more than 170 g/m2, flat fabrics. The rate of duty will be 15.3 percent ad valorem.

Both these fabrics fall within textile category designation 619. The designated textile and apparel categories and their quota and visa status are the result of international agreements that are subject to frequent renegotiations and changes. To obtain the most current information, we suggest that you check, close to the time of shipment, the U.S. Customs Service Textile Status Report, an internal issuance of the U.S. Customs Service, which is available at the Customs Web Site at WWW.CUSTOMS.GOV. In addition, the designated textile and apparel categories may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected and should also be verified at the time of shipment.

COUNTRY OF ORIGIN - LAW AND ANALYSIS:

On December 8, 1994, the President signed into law the Uruguay Round Agreements Act. Section 334 of that Act (codified at 19 U.S.C. 3592) provides new rules of origin for textiles and apparel entered, or withdrawn from warehouse, for consumption, on and after July 1, 1996. On September 5, 1995, Customs published Section 102.21, Customs Regulations, in the Federal Register, implementing Section 334 (60 FR 46188). Thus, effective July 1, 1996, the country of origin of a textile or apparel product shall be determined by sequential application of the general rules set forth in paragraphs (c)(1) through (5) of Section 102.21.

T.D. 01-36 amended the Customs Regulations on an interim basis to align the country of origin rules for textiles and apparel with the statutory changes made to section 334 of the Uruguay Round Agreements Act as set forth in section 405 Title IV of the Trade and Development Act of 2000.

Paragraph (c)(1) states that "The country of origin of a textile or apparel product is the single country, territory, or insular possession in which the good was wholly obtained or produced." As the subject merchandise is not wholly obtained or produced in a single country, territory or insular possession, paragraph (c)(1) of Section 102.21 is inapplicable.

Paragraph (c)(2) states that "Where the country of origin of a textile or apparel product cannot be determined under paragraph (c)(1) of this section, the country of origin of the good is the single country, territory, or insular possession in which each of the foreign materials incorporated in that good underwent an applicable change in tariff classification, and/or met any other requirement, specified for the good in paragraph (e) of this section:"

Paragraph (e) in pertinent part states that "The following rules shall apply for purposes of determining the country of origin of a textile or apparel product under paragraph (c)(2) of this section":

HTSUS Tariff shift and/or other requirements

(1) A change from greige goods of heading 5407 through 5408 to finished fabric of heading 5407 through 5408 by both dyeing and printing when accompanied by two or more of the following finishing operations: bleaching, shrinking, fulling, napping, decating, permanent stiffening, weighting, permanent embossing, or moireing; or

(2) If the country of origin cannot be determined under (1) above, a change to heading 5407 through 5408 from any heading outside that group, provided that the change is the result of a fabric making process.

As both woven fabrics designated as Guardian Polyester, Raw and Guardian Polyester, Encapsulated are formed by a fabric making process in a single country, that is, Malaysia, as per the terms of the tariff shift requirement, country of origin is conferred in Malaysia.

HOLDING:

The country of origin of the two woven fabrics is Malaysia. Based upon international textile trade agreements products of Malaysia are subject to quota and the requirement of a visa.

The holding set forth above applies only to the specific factual situation and merchandise identified in the ruling request. This position is clearly set forth in section 19 CFR 177.9(b)(1). This section states that a ruling letter, either directly, by reference, or by implication, is accurate and complete in every material respect.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177). Should it be subsequently determined that the information furnished is not complete and does not comply with 19 CFR 177.9(b)(1), the ruling will be subject to modification or revocation. In the event there is a change in the facts previously furnished, this may affect the determination of country of origin. Accordingly, if there is any change in the facts submitted to Customs, it is recommended that a new ruling request be submitted in accordance with 19 CFR 177.2.

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Alan Tytelman at 646-733-3045.

Sincerely,

Robert B. Swierupski
Director,

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