CLA-2 OT:RR:CTF:TCM HQ H260252 TSM
Port Director, Port of Baltimore, Maryland
U.S. Customs and Border Protection
40 South Gay Street
Baltimore, MD 21202
Attn: Jeremy Jackson, Supervisory Import Specialist
Re: Protest and Application for Further Review No. 1303-14-100034; Classification of polyurethane-coated fabric conveyor belting.
Dear Port Director:
The following is our decision regarding Protest and Application for Further Review No. 1303-14-100034, timely filed on March 28, 2014, on behalf of Universal Belting Resource (“Protestant”) regarding the tariff classification of polyurethane-coated fabric conveyor belting under the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
The subject conveyer belting, product code AM-UU85/2ENF NPY M White # 130605 consists of polyurethane-coated fabric conveyor belting, imported in rolls for further fabrication after import. One side is smooth, and the other side is textured with a regular grid pattern. The belting is constructed of two inner layers of polyester non-fray monofilament fabric, separated by a layer of white, non-cellular polyurethane (PU). Both inner layers of the fabric consist of the identical textile composition. The three layer combination is completely coated on both sides with white, non-cellular PU. The PU is visible to the naked eye and completely obscures the polyester textile. The side surfaces have accessible view of the cross sections of the textile fabric and the PU layers. The total thickness of the product is 2.1 mm. A sample of the subject merchandise was examined by the U.S. Customs and Border Protection (“CBP”) laboratory. Based upon its examination, the CBP laboratory determined that the belting weighs 2.165 kg/m², and that the component breakdown is 67.9% PU plastic and 32.1% textile.
The subject conveyor belting was originally entered on August 9, 2012 under subheading 5903.20.25, HTSUS, as “Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902: With polyurethane: Of man-made fibers: Other: Other.” On November 15, 2013, the subject merchandise was liquidated under subheading 3921.90.25, HTSUS, which provides for “Other plates, sheets, film, foil and strip, of plastics: Other: Combined with textile materials and weighing more than 1.492 kg/m²: Products with textile components in which man-made fibers predominate by weight over any other single textile fiber.”
Protestant claims that the correct classification is in subheading 5903.20.20, HTSUS, which provides for “Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902: With polyurethane: Of man-made fibers: Other: Over 70 percent by weight of rubber or plastics.” Protestant also claims that the subject merchandise could alternatively be classified in subheading 3921.90.29, HTSUS, which provides for “Other plates, sheets, film, foil and strip, of plastics: Other: Combined with textile materials and weighing more than 1.492 kg/m²: Other.”
ISSUE:
What is the correct classification of the polyurethane-coated fabric conveyor belting under the HTSUS?
LAW AND ANALYSIS:
Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a) (2) as a decision on classification. The protest was timely filed, within 180 days of liquidation of the first entry. (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. 2006-2013-100005 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) because Protestant alleges that the decision against which the protest was filed is inconsistent with Headquarters Ruling Letter (HQ) 957620, dated February 28, 1996. Further review is also properly accorded pursuant 19 C.F.R. § 174.24 (b) because Protestant alleges that the decision against which the protest was filed involves questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts.
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 GRIs 2 through 6 may then be applied in order.
The HTSUS provisions under consideration are as follows:
3921 Other plates, sheets, film, foil and strip, of plastics:
3921.90 Other:
* * *
Combined with textile materials and weighing more than 1.492 kg/m²:
* * *
3921.90.25 Products with textile components in which man-made fibers predominate by weight over any other single textile fiber
3921.90.2510 Over 70% by weight of plastics
3921.90.2550 Other
3921.90.29 Other
* * *
5903 Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902:
5903.20 With polyurethane:
* * *
Of man-made fibers:
* * *
Other:
5903.20.20 Over 70 percent by weight of rubber or plastics
5903.20.25 Other
Note 2 to Chapter 59 provides, in pertinent part, the following:
2. 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:
* * *
(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).
* * *
Note 10 to Chapter 39, HTSUS, provides as follows:
10. In headings 3920 and 3921, the expression "plates, sheets, film, foil and strip" applies only to plates, sheets, film, foil and strip (other than those of chapter 54) and to blocks of regular geometric shape, whether or not printed or otherwise surface-worked, uncut or cut into rectangles (including squares) but not further worked (even if when so cut they become articles ready for use).
In addition, in interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The ENs to Chapter 39, HTSUS, provide, in pertinent part, the following:
The following products are also covered by this Chapter:
(b) 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 of colour.
In its submission, Protestant argues that the subject merchandise should be classified in heading 5903, HTSUS, as a textile fabric impregnated, coated, covered or laminated with plastics, and specifically in subheading 5903.20.20, HTSUS, which provides for “Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902: With polyurethane: Of man-made fibers: Other: Over 70 percent by weight of rubber or plastics.” In the alternative, Protestant argues that the subject merchandise should be classified in heading 3921, HTSUS, as other plates, sheets, film, foil and strip of plastics, and specifically in subheading 3921.90.29, HTSUS, which provides for “Other plates, sheets, film, foil and strip, of plastics: Other: Combined with textile materials and weighing more than 1,492 kg/m²: Other.”
Based upon our examination, we note that the subject merchandise, both the front and back, is entirely covered with a PU coating that is visible to the naked eye. It was also submitted to the CBP laboratory, and the laboratory report confirmed that the product includes “two layers of woven fabric which are totally coated and encased in a white colored non-cellular polyurethane plastic.” In the lab’s opinion, the coating was also visible to the naked eye. Therefore, pursuant to Note 2(a)(3) to Chapter 59, HTSUS, the subject merchandise is not classified in heading 5903, HTSUS, and this same note directs classification in Chapter 39, HTSUS. The subject merchandise, imported in rolls, meets the definition of “plates, sheets, film, foil and strip,” as set forth in Note 10 to Chapter 39, HTSUS, since it is imported in rectangular rolls of varying, but consistent widths, that is surface-worked with the grid texture, but not further worked (e.g., ground edges, drilled, milled, hemmed, twisted, framed or otherwise worked or cut into shapes other than rectangular). Because the PU is combined with a textile, classification in heading 3920 is precluded. The subject merchandise which is comprised of textile covered with a PU coating is classified in heading 3921, HTSUS, and subheading 3921.90, HTSUS, which provides for “Other plates, sheets, film, foil and strip, of plastics: Other.”
According to the CBP lab report, the subject merchandise was made “wholly of man-made (polyester) filaments.” The CBP lab report also notes that the “composition of the sample by weight is 67.9% polyurethane plastic coating and 32.1% textile (average of two tests).” The CBP lab report notes the methods used: CBPL 59-03, CBPL 59-04, CBPL 59-11 and CBPL 59-13. Protestant notes the CBP methods used, and argues that the analysis and determination made based on averaged tests is not an acceptable method. Protestant states that its own report from an independent laboratory analyzed the subject merchandise utilizing a Fourier Transform Infrared Spectrometer (FTIR) to determine the components of the product. The different components were then quantified using a Thermal Gravimetric Analysis (TGA) procedure. Protestant explains that when TGA and FTIR procedures are used jointly, the results are capable of very detailed analysis. Protestant’s own independent laboratory report determined that the product was composed of 75.2% PU, 23.1% polyester, and 1.7% organics. Protestant argues that the independent laboratory’s test is a much more accurate test, and that CBP’s lab report is erroneous. Protestant cites to American Sporting Goods v. US, 259 F. Supp. 2d 1302, 1308-1309 (CIT 2003), as an example of a case where the Court of International Trade determined that the plaintiff’s independent lab report prevailed over CBP’s lab report.
Pursuant to 28 U.S.C. § 2639 (a) (1) (1994), Customs enjoys a statutory presumption of correctness. Thus, an importer has the burden to prove by a preponderance of the evidence that a Customs decision was incorrect. See Ford Motor Company v. United States, 157 F.3d 849, 855 (Fed. Cir. 1998). Furthermore, “[i]t is well settled that the methods of weighing, measuring, and testing merchandise used by customs officers and the results obtained are presumed to be correct.” See Aluminum Company of America v. United States, 60 C.C.P.A. 148, 151, 477 F.2d 1396, 1398 (1973) (hereinafter Alcoa). Absent a conclusive showing that the testing method used by the Customs laboratory is in error, or that the Customs’ laboratory results are erroneous, there is a presumption that the results are correct. See Exxon Corp. v. United States, 462 F. Supp. 378, 81 Cust. Ct. 87, C.D. 4772 (1978). “If a prima facie case is made out, the presumption is destroyed, and the Government has the burden of going forward with the evidence.” Alcoa, 477 F.2d at 1399. In Alcoa, the importer was able to overcome the presumption of correctness afforded Customs by clearly establishing that the samples tested by the importer were taken from the shipment under question as it arrived in the U.S. Moreover, the samples were analyzed by the importer’s own chemists as well as two independent labs using the published Customs Lab Method, which was considered reliable by both sides.
In this case, although the Protestant has provided results contrary to those of the Customs laboratory, the Protestant has failed to establish a prima facie case that the methods used by the Customs laboratory are in error or that the results are erroneous. Protestant does not provide any evidence that the analysis of the composition of the sample by CBP, which was run in duplicate, is erroneous. Protestant also does not provide any evidence that the CBP methods cited in the CBP laboratory report are erroneous. Instead, Protestant submits that there is an alternative and allegedly better testing method. In cases such as this, where an independent lab report is submitted that differs from the Customs laboratory report, the Customs laboratory report cannot be disregarded and, takes precedence over the outside report. See, HQ 957282, dated March 28, 1995 (citing Customs Directive 099 3820-002, dated May 4, 1992). “Customs cannot rely on outside reports, which may or may not utilize different testing methods and still remain consistent in its tariff classification. Additionally, generally Customs does not have any evidence that the merchandise tested by the outside laboratory is the same merchandise that was imported in to the U.S. Therefore, Customs must rely on its own laboratory analysis when determining the proper tariff classification of merchandise.” See HQ 957282. See also HQ 958346, dated February 6, 1996. In addition, the Protestant has provided no evidence that the samples from the entry at issue were tested. The Protestant has also failed to demonstrate that the methods used by the Customs laboratory were in error. An alternative or different testing methodology is not evidence of CBP error, and does not establish CBP error.
Finally, Protestant argues that the subject merchandise is not classified in subheading 3921.90.25, HTSUS, which provides for “Products with textile components in which man-made fibers predominate by weight over any other single textile fiber.” Protestant argues that the subheading text “predominate by weight over any other single textile fiber” requires the presence of at least two types of fibers. Protestant notes that the belting consists of 100% polyester filaments. As such, Protestant argues that the polyester fibers cannot predominate by weight over any other single textile fiber, as required by the subheading text (emphasis added). In support thereof, Protestant cites Semperit Industrial Products, Inc. v. United States, 855 F. Supp. 1292 (1994) for the proposition that the subheading text “predominate by weight over any other single textile fiber” in subheading 3921.90.25, HTSUS, requires the presence of at least two types of fibers. Protestant claims that since the textile component is only comprised of man-made polyester fibers, classification in subheading 3921.90.25, HTSUS, is not appropriate. In Semperit, the Court of International Trade concluded that to be classifiable under a provision requiring that “man-made fibers predominate by weight over any other single textile fiber,” a product must contain textile fibers other than man-made fibers and man-made fibers must be superior in weight. Protestant further cites HQ 957620, dated February 28, 1996. In HQ 957620, CBP classified a woven textile conveyor belting embedded in polyvinyl chloride (PVC) in subheading 3921.90.2900, HTSUS.
We note, however, that in Semperit, goods of Chapter 40, HTSUS, were at issue. In Value Vinyls, Inc. v. United States, (Fed. Cir. 2009), the tariff language “Products with textile components in which man-made fibers predominate by weight over any other single textile fiber” for goods of Chapter 39, HTSUS, was at issue. In Value Vinyls, Inc., the United States Court of Appeals for the Federal Circuit considered whether a product, whose textile component was made entirely of man-made fibers, was a “product with textile components in which man-made fibers predominate by weight over any other single textile fiber” within the meaning of subheading 3921.90.11, HTSUS. The Court concluded that goods with textile components made wholly of man-made fibers are within subheading 3921.90.11, HTSUS, and that the residual “Other” provision of subheading 3921.90.19 includes textiles with a less than predominant amount of man-made fibers. The Court further found that the Semperit definition of “predominate by weight over any other single textile fiber” does not apply throughout the HTSUS, and to different goods. Specifically, the United States Court of Appeals for the Federal Circuit found as follows:
The Court of International Trade did not err in holding that the definition and application of "predominate" in Semperit does not apply to these different goods and different HTSUS section. The complexity of the tariff schedule, the great variety of products in trade, and the constant barrage of new products, all support the obligation of the Court of International Trade to reach the "correct result" in the case at hand. Jarvis Clark Co., 733 F.2d at 878. We conclude that the court correctly ruled that subheading 3921.90.11 embraces products whose textile component is made wholly of man-made fibers, and therefore applies to Value Vinyls' goods.
We believe that Value Vinyls, Inc. controls, for purposes of classification in heading 3921, HTSUS, and subheading 3921.90.25, HTSUS. Although HQ 957620, dated February 28, 1996, classified a woven textile conveyor belting embedded in polyvinyl chloride (PVC) in subheading 3921.90.2900, this decision predates Value Vinyls, Inc.
We conclude that the subject conveyor belting is classified in subheading 3921.90.25, HTSUS, which provides for “Other plates, sheets, film, foil and strip, of plastics: Other: Combined with textile materials and weighing more than 1,492 kg/m²: Products with textile components in which man-made fibers predominate by weight over any other single textile fiber.”
HOLDING:
By application of GRIs 1 and 6, the polyurethane-coated fabric conveyor belting is classified in heading 3921, HTSUS. It is specifically provided for in subheading 3921.90.2550, HTSUS, which provides for “Other plates, sheets, film, foil and strip, of plastics: Other: Combined with textile materials and weighing more than 1.492 kg/m²: Products with textile components in which man-made fibers predominate by weight over any other single textile fiber: Other.”
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 website 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