CLA-2 CO:R:C:T 951310 HP
Mr. Richard L. Rudin
District Director
U.S. Customs Service
6269 Eighth Industrial Drive
Milwaukee, WI 53110
RE: Application for further review of protest no. 3701-91-
000029. Fabric; plastic; filler; weight
Dear Mr. Rudin:
This is in reply to your memorandum of July 26, 1991,
attaching documents relating to the application for further
review of protest no. 3701-91-000029. Please reference your file
number PRO-4 GL:MW:DD:C JBH.
FACTS:
The merchandise at issue consists of Vinnapas fabric,
constructed of 100% perlon (polyamide) fabric which is stated to
be coated on one surface with a polyvinyl acetate plastics
material. The protesting party argues that the fabric meets the
requirements of Note 9 to Section XI, Harmonized Tariff Schedule
of the United States Annotated (HTSUSA), and should be classified
under subheading 5903.90.15, HTSUSA. In the alternative,
protestant claims that the fabric should be classified as over
70% by weight of plastics under subheading 5903.90.20, HTSUSA.
You disagree, positing that, based upon laboratory analysis, the
correct classification is under subheading 5903.90.25, HTSUSA, as
being under 70% by weight of plastics.
ISSUE:
Whether the fabric meets the specifications of Note 9 to
Section XI, HTSUSA? Whether the fabric is over 70% by weight of
plastics?
LAW AND ANALYSIS:
Subheading 5903.90.15, HTSUSA, provides for man-made textile
fabrics impregnated, coated, covered or laminated with plastics,
and meeting the specification in Note 9 to Section XI, HTSUSA.
The Note identifies these fabrics as "consisting of layers of
parallel textile yarns superimposed on each other at acute or
right angles. These layers are bonded at the intersections of
the yarns by an adhesive or by thermal bonding."
The Explanatory Notes (EN) to the Harmonized Commodity
Description and Coding System (Harmonized System) constitute the
official interpretation of the scope and content of the tariff at
the international level. They represent the considered views of
classification experts of the Harmonized System Committee.
Totes, Inc. v. United States, No. 91-09-00714, slip op. 92-153,
14 Int'l Trade Rep. (BNA) 1916, 1992 Ct. Intl. Trade LEXIS 158
(Ct. Int'l Trade 1992). While not treated as dispositive, the EN
are to be given considerable weight in Customs' interpretation of
the HTSUSA. Boast, Inc. v. United States, No. 91-11-00793, slip
op. 93-20, 1993 Ct. Intl. Trade LEXIS 19 (Ct. Int'l Trade 1993).
It has therefore been the practice of the Customs Service to
follow, whenever possible, the terms of the Explanatory Notes
when interpreting the HTSUSA. The General Explanatory Notes to
Section XI, at 712, expand upon the legal Note's definition as
follows:
[W]oven fabrics ..., by application of
Note 9 to Section XI, include, for example,
fabrics consisting of:
- one layer of parallel "warp" yarns with
a layer of parallel "weft" yarns
superimposed at acute or right angles;
- two layers of parallel "warp" yarns
between which a layer of "weft" yarns is
inserted at acute or right angles.
The essential characteristic of these
fabrics is that the yarns are not interlaced
as in conventional woven fabrics but are
bonded at the intersections with an adhesive
or by thermal bonding.
These fabrics are sometimes referred to
as mesh scrims; their uses include the
reinforcement of other materials (plastics,
paper, etc.). They are also used, for
example, for the protection of agricultural
crops.
Although counsel stated in the protest that the merchandise
at issue is composed of "layers of parallel textile yarns
superimposed . . . at right angles [and] bonded . . . by
polyvinylacetat" (sic.), Customs Laboratory Report No. 3-90-
10614-001 of July 20, 1990 (614), and Supplemental Laboratory
Report No. 3-92-10618-001 of August 3, 1992 (618), both found
that the textile portion of the fabric is constructed of woven
nylon fibers. Following Note 9 to Section XI, therefore,
classification in subheading 5903.90.15, HTSUSA, is prohibited.
Counsel argues in the alternative that the fabric is over
70% by weight of plastics, and should be classified under
subheading 5903.90.20, HTSUSA. While the original laboratory
report (614) found the fabric to be composed of 67% polyvinyl
acetate and 33% woven nylon fibers, their analysis was based upon
whether the fabric would qualify for a provision requiring over
60% by weight of plastics. Based upon the additional information
supplied by the importer, the sample was re-analyzed in
supplementary report (618) and found to be over 70% by weight of
plastics. The discrepancy occurred because the sample also
contained 4.5% by weight of magnesium silicate, a fine white
powder commonly used as a filler. Plastics may contain fillers.
See the General Explanatory Note to Chapter 39, at 553. While
both laboratory reports incorporated the correct analyses and
provided the correct responses to their respective questions
presented, the supplementary report (618) allows re-
classification of the merchandise under the protestant's
alternative subheading. Accordingly, since the fabric meets the
"visible to the naked eye" test of Note 2 to Chapter 59, it is
classifiable as a man-made fabric with over 70% by weight of
plastics.
HOLDING:
As a result of the foregoing, the instant merchandise is
classified under subheading 5903.90.2000, HTSUSA. The applicable
rate of duty is 4.2 percent ad valorem. Since the classification
we have independently arrived at has an applicable rate of duty
less than the appraised duty but more than the claimed duty, you
are instructed to deny this Protest, except to the extent
reclassification of the merchandise as indicated above results in
a partial allowance. A copy of this letter should be forwarded
to protestant's counsel as part of the Notice of Action.
A copy of this ruling letter should be attached to the entry
documents filed at the time this merchandise is imported. If the
documents have been filed without a copy, this ruling should be
brought to the attention of the Customs officer handling the
transaction.
Sincerely,
John Durant, Director
Commercial Rulings Division