CLA-2 OT:RR:CTF:TCM H037542 ASM
Port Director
Bureau of Customs and Border Protection
101 E. Main Street
Norfolk, Virginia 23510
RE: Application for Further Review of Protest No. 1401-08-100362; Tariff
Classification of Coated Fabric
Dear Port Director:
This is in reference to a Protest and Application for Further Review (AFR), filed on behalf of the importer, DSM Dyneema B.V., regarding the classification of a coated fabric under the Harmonized Tariff Schedule of the United States (HTSUS). A sample of the subject fabric has been received and examined by U.S. Customs and Border Protection (CBP).
FACTS:
The subject fabric, identified as “SB31” and “SB61”, is described by the importer as follows:
… man-made “ultra high molecular weight polyethylene” (“UHMWPE”) fibers, which are made using a DSM patented method called gel spinning. A precisely-heated gel of UHMWPE is processed by an extruder through a spinneret, drawn through air and then cooled in a water bath … These Dyneema® fibers are then bonded together with a plastic pressure
sensitive adhesive (PSA), which forms a bond when pressure is applied to marry the adhesive with the Dyneema® fibers. The Dyneema® UD production is based on a three step process:
Step 1: Impregnation – adding the PSA to the man made fibers to form a non-woven fiber sheet.
Step 2: Cross-plying – stacking the fiber sheets into 0/90 degrees
layers orientation
Step 3: Lamination – assembling of multiple layers of step 2. And, in the case of Dynema® SB, addition of a plastic coating which is a non-removable protection layer not visible to the naked eye.
The weight of the DyneemaA® SB and HB products is more than 150g/m2.
* * * * *
Dyneema® UD is a non-woven fabric, in which Dyneema® fibers are bonded with plastic, and … coated/laminated with a very thin non-visible layer of plastic … .
The CBP laboratory analyzed the subject fabric and provided a report which stated, in part:
The sample is a white colored sheet consisting of six layers. The two exterior layers are composed on noncellular polyethylene plastic film. Each of the four interior layers is composed of polyethylene filaments. The direction of the parallel filaments in each layer is perpendicular to the adjacent layers. The sample is not woven or knit. The sample weighs 0.168 kilograms per square meter …
The subject Protest concerns one entry of merchandise imported through the port of Norfolk, Virginia, on September 20, 2006. The importer entered both products under subheading 5903.90.3090, HTSUS, which provides for “Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902: Other: Other, Other”. However, CBP disagreed with this classification and liquidated the fabrics under subheading 3921.90.1950, HTSUS, which provides for “Other plates, sheets, film, foil and strip, of plastics: Other: Combined with textile materials and weighing not more than 1,492 kg/m2: Other, Other”.
On June 24, 2008, the importer timely filed a Protest and AFR asserting that both the Dyneema® products, SB31 and SB61, are non-woven textiles which have been coated/laminated with a plastics material that is not visible to the naked eye. However, protestant now asserts that the correct classification is not in subheading 5903.90.3090, HTSUS, but rather in the duty free provision of subheading 5603.14.3000, HTSUS, which provides for “Nonwovens, whether or not impregnated, coated, covered or laminated: Of man-made filaments: Weighing more than 150 g/m2: Laminated fabrics”.
ISSUE:
What is the proper classification for the merchandise?
LAW AND ANALYSIS:
The protest was properly filed under 19 U.S.C. §1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).
Further Review of Protest No. 2904-06-10031 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(c). The decision against which the protest was filed is alleged to involve matters not previously ruled upon by the Port or the Commissioner of CBP.
Classification under the HTSUS 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 Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The subject merchandise is not a woven fabric and is therefore not classified in Chapter 59. Nowoven textiles are covered in Chapter 56 of the HTSUS. Specifically, Chapter 56 covers wadings, felts and nonwovens. These products are not considered wadding or felt based on their construction and manufacturing specifications described in counsel’s memorandum. Nonwovens of heading 5603, are characterized by their method of manufacture and are generally recognized by the three stages of production: web formation, bonding methods, and finishing processes.
The EN to heading 56.03 provides guidance on the stages of nonwoven fabric formation setting forth a description of each process in three separate sections, which can be summarized as follows:
Web formation – four basic methods (dry-laid process, spun laid process, wet-laid process, and in situ process)
Bonding – three basic types (chemical, thermal, and mechanical)
Finishing – exemplars are such things as dying, printing, impregnating, coating, covering or laminating.
The EN to heading 56.03 states in section “III Finishing” that “Nonwovens may be dyed, printed, impregnated, coated, covered or laminated. Those covered on one or both surfaces (by gumming, sewing or by any other process) with textile fabric or with sheets of any other material are classified in this heading only if they derive their essential character from the nonwoven.”
In addition, the EN to heading 56.03 specifically provides for the following exclusions:
However, the heading does not cover the following products which fall in
Chapter 39 or 40:
Nonwovens, either completely embedded in plastics or
rubber, or entirely coated or covered on both sides with such
materials, provided that such coating or covering can be
seen with the naked eye with no account being taken of any
resulting change of colour.
Therefore, even if the subject fabrics are determined to be a “nonwoven” within the meaning of the HTS, if the subject fabrics are either completely embedded in plastics or entirely coated or covered on both sides with such materials, provided the coating is visible, the product is excluded from classification in heading 5603, HTS.
Chapter 56, Note 3, of the HTSUS, also references this exclusion by providing, in relevant part, as follows:
3. Headings 5602 and 5603 cover respectively felt and nonwovens,
impregnated, coated, covered or laminated with plastics or rubber
whatever the nature of these materials (compact or cellular).
Heading 5603 also includes nonwovens in which plastics or rubber forms the bonding substance.
Headings 5602 and 5603 do not, however, cover:
* * *
Nonwovens, either completely embedded in plastics or
rubber, or entirely coated or covered on both sides with such materials, 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 or 40); . . .
* * *
Although there is no definition in the HTSUS of whether or not a coating is visible to the naked eye, CBP has set forth factors to consider when determining what constitutes a coating that can be seen with the naked eye within the meaning of Chapter 59, Note 2(a)(1), and by extension within the context of Chapter 56,
Note 3(b). In Headquarters Ruling Letter (HQ) 955031, dated March 30, 1994, CBP stated:
The sole criteria upon which Customs is to determine whether fabric is coated for purposes of classification under heading 5903, HTSUSA, is based on visibility: fabric is classifiable in Chapter 59 if the plastic coating is visible to the naked eye. This standard does not allow the examiner to take the ‘effects’ of plastic into account. Plastic coating will often result in a change of color, increase a fabric’s stiffness or lend a sheen to fabric; these are factors which while indicative of the presence of plastic, may not be taken into account in determining whether the plastic itself is visible to the naked eye. The prohibition against taking a change of color into account is explicitly set forth in Chapter Note 2(a)(1). Stiffness is not a reliable indicator of coating because it may dissipate or entirely disappear over time and it is detected more by touch than by visual inspection. Sheen may be imparted to a fabric by the application of coating, but this too is an unreliable indicator of the presence of coating inasmuch as it may be imparted to fabric by means of heat calendaring and other methods of treating fabric which do not involve the application of coating.
The following rulings also provide guidance on the factors giving rise to coatings which are visible to the naked eye: HQ 083194, dated December 18, 1989 (the pattern on the fabric was obscured and the plastic coating filled the instersections of the weave); HQ 086846, dated July 23, 1990 (the plastic was visible at the intersticews of the yarns when the fabric was held up to the light); HQ 957850, dated July 5, 1995 (wherein a plastic coating was clearly visible when viewed in cross section); HQ 088769, dated May 23, 1991 (a partial obscuring of the underlying weave pattern was attributable to the coating and found to be an indication of a visible coating); HQ 950022, dated September 26, 1991 (where all interstices of fabric weave were filled with polyurethane so as to leave no gaps was found to have visible coating. However, when noticeable gaps were found in the fabric weave where plastic had not occluded, the fabric was found not to be visibly coated); HQ 952705, dated January 22, 1993 (the dulll appearance of fabric was not an indication of visible coating); HQ 953407, dated July 12, 1993 (visible coating was found where the coating “blurred the surface of the fabrics”); HQ 950468, dated January 2, 1992 (a visible coating was found where the plastic coating changes the visual or surface characteristics of the fabric.
We have carefully examined the sample submitted to this office and find that the coating can be seen with the naked eye. In fact, the coating affects the surface texture, and obscures the underlying textile (filament) structure. When the fabric is viewed on an angle or in a curved condition, it flattens the surface, obscuring any textile feature.
In considering the construction of the subject fabrics, we note that while it appears that this textile construction may fit within the meaning of the tariff definition of a “nonwoven”, we have already determined that the coating is visible to the naked eye. Therefore, it is excluded from classification in Chapter 56, HTSUS, pursuant to Note 3(b), Chapter 56, which has been outlined in detail above. Although protestant has attempted to argue that working papers from the CBP Laboratory referenced a “clear coating”, the legal application of such terminology is reserved for the CBP Port Director as delegated to the National Import Specialists and Attorney Advisors in the Office of International Trade.
The protestant has also asserted that the textile component provides the article’s “essential character”. Inasmuch as Chapter 39, HTSUS, provides for coated fabrics and can be analyzed pursuant to a GRI 1 analysis, in this instance, it would be incorrect to apply a GRI 3 analysis. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, then according to the remaining GRIs taken in their appropriate order.
The general EN to Chapter 39, under the heading, “Plastics and textile combinations”, in part provides:
The following products are also covered by this Chapter:
* * *
Textile fabrics and nonwovens, 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 in colour;…
In view of the foregoing, and considering the information provided in the CBP lab report which found that the sample to weigh 0.168 kg/m2 and the plastic to be polyethylene (PE), if the merchandise is imported in material lengths we find the product to be properly classified in subheading 3921.90.1950, HTSUSA.
HOLDING:
The subject merchandise, which has been identified as “SB31” and “SB61”, is correctly classified in subheading 3921.90.1950, HTSUSA, which provides for “Other plates, sheets, film, foil and strip, of plastics: Other: Combined with textile materials and weighing not more than 1,492 kg/m2: Other, Other”. The general column one rate of duty at the time of entry was 5.3 percent ad valorem.
You are instructed to DENY the protest.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division