CLA-2 OT:RR:CTF:TCM H163999 AMM
Port Director
U.S. Customs and Border Protection
Service Port - Charleston
200 East Bay Street Charleston, SC 29401
Attn: Drusilla Addison
RE: Tariff classification of Latex Coated Fabric; Protest Number
1601-11-100135
Dear Port Director:
This letter is in reply to protest, and application for further review (AFR), number 1601-11-100135, dated March 18, 2011, filed on behalf of Bodam Corp. (Bodam), against U.S. Customs and Border Protection’s (CBP) reclassification and subsequent liquidation of one entry of latex coated fabric.
FACTS:
This protest pertains to one entry for latex coated fabrics. The instant merchandise is identified by Style Nos. SP 10011, SP 209, SP 16011, SPN 102, and P 10022. The entry took place at the Service Port of Charleston (the Charleston Port) on June 6, 2010, and was liquidated on March 11, 2011. The product is described in the protest as “Latex Coated Conveyor Belt Fabric.” Samples of each product style were delivered to CBP for laboratory testing.
The instant products have been dipped in latex, such that it is applied on both sides. The latex has essentially dyed the samples a rust-orange color, but there is otherwise no evidence that the coating can be seen with the naked eye.
Laboratory testing was performed on samples of each product to determine the weight, thickness, fiber type and content, and other relevant characteristics.
Style No. SP 10011 is a rust-orange colored plain woven fabric composed of polyester staple yarns. It weighs 576.6 g/m2, and has a thickness of 1.14mm.
Style No. SP 209 is a rust-orange colored plain woven fabric composed of polyester staple yarns. It weighs 490.7 g/m2, and has a thickness of 0.88mm.
Style No. SP 16011 is a rust-orange colored plain woven fabric composed of polyester staple yarns. It weighs 864.4 g/m2, and has a thickness of 1.34mm.
Style No. SPN 102 is a rust-orange colored plain woven fabric composed of 82.5% polyester staple yarns and 17.5% nylon filament yarns. It weighs 446.3 g/m2, and has a thickness of 0.85mm.
Style No. P 10011 is a rust-orange colored plain woven fabric composed of non-textured polyester filament yarns. The fabric has an application of RFL on both sides, weighs 451.9 g/m2, and has a thickness of 0.68mm. The sample measures more than 77cm in width. The warp yarns, which make up 62.8% of the fabric, have a tenacity of 58.3 cN/tex. The filling yarns, which make up 37.2% of fabric, have a tenacity of 61.5 cN/tex.
Samples of the latex coating material were submitted to CBP for testing in accordance with Note 4(a) to Chapter 40, HTSUS. According to CBP Laboratory Report No. NY 20111527, dated September 13, 2011, the samples submitted did not meet the performance test requirements of the Note.
ISSUE:
What is the correct classification of the five styles of latex coated fabric under the HTSUS?
LAW AND ANALYSIS:
Initially we note that the matter is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification and the rate and amount of duties chargeable. The protest was timely filed on March 18, 2011, within 180 days of liquidation, pursuant to 19 U.S.C. §1514(c)(3).
Further review of Protest No. 1601-11-100135 was properly accorded to protestant pursuant to 19 C.F.R. §174.24. Specifically, in accordance with Section 174.24(a), the decision against which the protest was filed is alleged to be inconsistent with a decision made at another port with respect to the same or substantially similar merchandise. Bodam alleges that the decision made by the Charleston Port is inconsistent with decisions made by the Port of Entry of St. Louis (the St. Louis Port) in Protest No. 4501-07-100015, and by the Service Port of Newark/New York (the Newark Port) in Protest No. 4601-08-102308, both of which involve merchandise alleged to be identical to that of the instant Protest.
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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 2012 HTSUS provisions at issue are as follows:
5407 Woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404:
5407.10.00 Woven fabrics obtained from high tenacity yarn of nylon or other polyamides or of polyesters
-------------------------
Other woven fabrics, containing 85 percent or more by weight of polyester filaments:
5407.61 Containing 85 percent or more by weight of non-textured polyester filaments:
Other:
5407.61.99 Other
-------------------------
5512 Woven fabrics of synthetic staple fibers, containing 85 percent or more by weight of synthetic staple fibers:
Containing 85 percent or more by weight of polyester staple fibers:
5512.19.00 Other
-------------------------
5515 Other woven fabrics of synthetic staple fibers:
Of polyester staple fibers:
5515.12.00 Mixed mainly or solely with man-made filaments
-------------------------
5903 Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902:
5903.90 Other:
Of man-made fibers:
Other:
5903.90.25 Other
-------------------------
5906 Rubberized textile fabrics, other than those of heading 5902:
Other:
5906.99 Other:
Of man-made fibers:
5906.99.25 Other
-------------------------
5910.00 Transmission or conveyor belts or belting, of textile material, whether or not impregnated, coated, covered or laminated with plastics, or reinforced with metal or other material:
5910.00.10 Of man-made fibers
Note 1 to Chapter 40, HTSUS, states, in pertinent part: “Except where the context otherwise requires, throughout the tariff schedule the expression ‘rubber’ means the following products, whether or not vulcanized or hard: … synthetic rubber …”.
Note 4 to Chapter 40, HTSUS, states, in pertinent part:
In note 1 to this chapter and in heading 4002, the expression ‘synthetic rubber’ applies to:
(a) Unsaturated synthetic substances which can be irreversibly transformed by vulcanization with sulfur into non-thermoplastic substances which, at a temperature between 18EC and 29EC, will not break on being extended to three times their original length and will return, after being extended to twice their original length, within a period of 5 minutes, to a length not greater than 1-1/2 times their original length. For the purposes of this test, substances necessary for the cross-linking, such as vulcanizing activators or accelerators, may be added; the presence of substances as provided for by note 5(b)(ii) and (iii) is also permitted. However, the presence of any substances not necessary for the cross-linking, such as extenders, plasticizers and fillers, is not permitted;
* * *
Note 1 to Section XI (which covers Chapters 54, 55 and 59), HTSUS, states, in pertinent part:
This section does not cover:
* * *
(h) Woven, knitted or crocheted fabrics, felt or nonwovens, impregnated, coated, covered or laminated with plastics, or articles thereof, of chapter 39;
(ij) Woven, knitted or crocheted fabrics, felt or nonwovens, impregnated, coated, covered or laminated with rubber, or articles thereof, of chapter 40;
* * *
Note 2 to Section XI, HTSUS, states, in pertinent part:
(A) Goods classifiable in chapters 50 to 55 or in heading 5809 or 5902 and of a mixture of two or more textile materials are to be classified as if consisting wholly of that one textile material which predominates by weight over each other single textile material.
* * *
Note 6 to Section XI, HTSUS, states, in pertinent part:
For the purposes of this section, the expression "high tenacity yarn" means yarn having a tenacity, expressed in cN/tex (centinewtons per tex), greater than the following:
Single yarn of nylon or other polyamides, or of polyesters . . . . . . . . 60 cN/tex
* * *
Note 11 to Section XI, HTSUS, states: “For the purposes of this section, the expression ‘impregnated’ includes ‘dipped.’”
Note 2 to Chapter 59, HTSUS, states, in pertinent part:
Heading 5903 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 purpose of this provision, no account should be taken of any resulting change of color;
* * *
Note 4 to Chapter 59, HTSUS, states, in pertinent part:
For the purposes of heading 5906, the expression “rubberized textile fabrics” means:
(a) Textile fabrics impregnated, coated, covered or laminated with rubber:
(i) Weighing not more than 1,500 g/m2; or
* * *
Note 6 to Chapter 59, HTSUS, states, in pertinent part: “Heading 5910 does not apply to: (a) Transmission or conveyor belting, of textile material, of a thickness of less than 3 mm; …”
The importer entered the instant merchandise under heading 5910, HTSUS, as conveyor belting. The Charleston Port liquidated Style Nos. SP 10011, SP 209, and SP 16011 under heading 5512, HTSUS, as “woven fabrics of synthetic staple fibers, containing 85 percent or more by weight of synthetic staple fibers”. Style No. SPN 102 was liquidated under heading 5515, HTSUS, as “Other woven fabrics of synthetic staple fibers”. Finally, Style No. P 10022 was liquidated under heading 5510, HTSUS, as “conveyor belting”. The importer now argues that the instant products are all properly classified under heading 5906, HTSUS, as “rubberized textile products”.
We note that articles with a thickness of less than 3mm are excluded from heading 5910, HTSUS, in accordance with Note 6(a) to Chapter 59, HTSUS. According to CBP laboratory testing, all five of the instant products have a thickness of less than 3mm. Therefore, the instant merchandise is excluded from heading 5910, HTSUS, by Note 6(a) to Chapter 59, HTSUS.
The importer submitted samples of their latex material for testing. According to CBP laboratory testing, the samples failed the performance test required by Note 4(a) to Chapter 40. Therefore, the latex material used for the instant products does not meet the requirements of the Note, and cannot be considered “synthetic rubber.” The instant merchandise cannot be classified under heading 5906, HTSUS, as a fabric impregnated or coated with rubber, because the material used to coat the fabric does not meet the definition of rubber. See Note 4(a)(i) to Chapter 59, HTSUS.
Samples of the instant merchandise used by the CBP laboratory for testing were delivered to this office and reviewed. The latex coating has essentially dyed the samples orange, but there is otherwise no evidence that the coating can be seen with the naked eye. Therefore, because the change in color cannot be taken into account under Note 2(a) to Chapter 59, HTSUS, the instant products cannot be classified in heading 5903, HTSUS.
According to CBP laboratory testing, Style Nos. SP 10011, SP 209, and SP 16011 are each woven fabrics composed of 100% polyester staple fibers. Therefore, these three products are properly classified under heading 5512, HTSUS. Specifically, they are classified under subheading 5512.19.00, HTSUS, which provides for “Woven fabrics of synthetic staple fibers, containing 85 percent or more by weight of synthetic staple fibers: Containing 85 percent or more by weight of polyester staple fibers: Other”.
According to CBP laboratory testing, Style No. SPN 102 is a woven fabric composed entirely of synthetic fibers, namely 82.5% polyester staple fibers and 17.5% nylon filament fibers. Therefore, this product is properly classified under heading 5515, HTSUS, specifically under subheading 5515.12.00, HTSUS, which provides for “Other woven fabrics of synthetic staple fibers: Of polyester staple fibers: Mixed mainly or solely with man-made filaments”.
In their original submission, the importer suggests that the instant merchandise may be properly classified under heading 5407, HTSUS, which provides for “Woven fabrics of synthetic filament yarn …”. Style No. P 10022 is a woven product composed entirely of polyester filament fibers. Therefore, this product is properly classified under heading 5407, HTSUS.
According to CBP laboratory testing, Style No. P 10022 is composed of two different polyester filament fibers. The filling yarns, which comprise 37.2% of the product by weight, meet the requirements of Note 6 to Section XI, HTSUS, as high tenacity yarn. However, the warp yarns, which comprise 62.8% of the product by weight, have a tenacity which does not meet this requirement. Because Style No. P 10022 is a mixture of two textile materials, it must be classified as if consisting wholly of that one textile material which predominates by weight. See Note 2(A) to Section XI, HTSUS. Therefore, Style No. P 10022 is not properly classified under subheading 5407.10.00, HTSUS, which provides for high tenacity yarn, because the warp yarns are not high tenacity yarns as defined by Note 6 to Section XI, HTSUS. Instead, Style No. P 10022 is described by the terms of subheading 5407.61.99, HTSUS, as polyester filament yarns containing less than 85% by weight of non-textured polyester filaments.
HOLDING:
The latex coated conveyor belting products identified as Style Nos. SP 10011, SP 209, and SP 16011 are properly classified under heading 5512, HTSUS, specifically under subheading 5512.19.00, HTSUS, which provides for “Woven fabrics of synthetic staple fibers, containing 85 percent or more by weight of synthetic staple fibers: Containing 85 percent or more by weight of polyester staple fibers: Other”. The general, column one rate of duty is 13.6% ad valorem.
The latex coated conveyor belting product identified as Style No. SPN 102 is properly classified under heading 5515, HTSUS, specifically under subheading 5515.12.00, HTSUS, which provides for “Other woven fabrics of synthetic staple fibers: Of polyester staple fibers: Mixed mainly or solely with man-made filaments”. The general, column one rate of duty is 12% ad valorem.
The latex coated conveyor belting product identified as Style No. P 10022 is properly classified under heading 5407, HTSUS, specifically under subheading 5407.61.99, HTSUS, 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 polyester filaments: Containing 85 percent or more by weight of non-textured polyester filaments: Other: Other”. The general, column one rate of duty is 14.9% ad valorem.
Since reclassification of the merchandise as indicated above would result in no net duty reduction, you are instructed to DENY the protest in full.
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 in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision, The Regulations and Rulings of the Office of International Trade 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