CLA-2 OT:RR:CTF:FTM H270908 GaK
U.S. Customs & Border Protection
423 Canal Street, Room 251
New Orleans, LA 70130
RE: Application for Further Review of Protest No. 2002-15-100070; Classification of textile underlayment
Attn.: Mark Peeler, Senior Import Specialist
Dear Port Director:
This is in response to the Application for Further Review (“AFR”) of Protest No. 2002-15-100070, received on October 11, 2015, on behalf of Super House, Inc. (“Super House” or “Protestant”). This AFR concerns U.S. Customs & Border Protection’s (“CBP”) tariff classification of textile underlayment (“merchandise”) under the Harmonized Tariff Schedule of the United States (“HTSUS”). In addition to the AFR, we have considered arguments made by counsel on behalf of Protestant in a meeting with my staff on October 10, 2017. We also reviewed a sample of the merchandise submitted by counsel on behalf of Super House.
FACTS:
This AFR concerns the tariff classification of textile underlayment entered in three entries on July 7, 2014, August 29, 2014, and December 8, 2014, and all liquidated on February 13, 2015. The textile underlayment was entered under subheading 5407.20.00, HTSUS, which provides for “[w]oven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404: Woven fabrics obtained from strip or the like (620).” The merchandise was liquidated and rate advanced under subheading 5903.90.30, HTSUS, which provides for “[t]extile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902: Other: Other.”
The merchandise is a multi-layered textile underlayment material, for use in flooring or roofing projects to protect the construction from water damage and moisture infiltrations. The first layer is a black nonwoven fabric with grey printing, characterized by a pattern of squares or diamonds arranged in regular rows. The second layer is said to be a clear plastic. The third layer is a woven fabric, appearing white in one direction and clear in the other. The fourth layer is a white-colored plastic.
ISSUE:
Whether the textile underlayment is classified under subheading 5407.20.00, HTSUS, as “[w]oven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404: Woven fabrics obtained from strip or the like,” or subheading 5903.90.30, HTSUS, as “[t]extile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902: Other: Other”?
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 for entries made on or after July 7, 2014. (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. 2002-15-100070 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed is alleged to be inconsistent with certain CBP rulings concerning allegedly similar merchandise.
Classification determinations under the HTSUS are 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 may then be applied.
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System 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 2014 HTSUS headings under consideration are as follows:
5407 Woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404:
5407.20.00 Woven fabrics obtained from strip or the like (620).
* * *
5903 Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902:
5903.90 Other:
5903.90.30 Other.
* * *
Note 2 to Chapter 59 provides, in pertinent part, that:
2. Heading 5903 applies to:
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:
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;
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);
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);
Fabrics partially coated or partially covered with plastics and bearing designs resulting from these treatments (usually chapters 50 to 55, 58 or 60);
Plates, sheets or strip of cellular plastics, combined with textile fabric, where the textile fabric is present merely for reinforcing purposes (chapter 39); or
Textile products of heading 5811.
A fabric is considered a fabric of heading 5903, HTSUS, if its impregnation, coating or covering of plastics is visible to the naked eye as required by Note 2(a)(1) to Chapter 59, HTSUS, with no account taken of any resulting change in color. It is CBP’s longstanding view that the wording of Note 2(a)(1), “visible to the naked eye,” is a clear expression by the drafters of the Harmonized System that a significant, if not substantial, amount of material must be added to a fabric for it to be considered impregnated, coated or covered. The plastic material added to the fabric must be visibly distinguishable from the fabric without the use of magnification. CBP believes this criterion is satisfied when the application of plastics material visibly affects the surface character of the fabric. In such an instance, the naked eye is seeing the plastics. No account should be taken of any resulting change in only shine, reflectivity, dullness or other property which causes the viewer to see the effect rather than presence of plastic material. See generally HQ 967884, dated October 26, 2005 (on the classification of certain pants with polyurethane coating); HQ 082219, dated November 21, 1988 (on the classification of three fabrics); HQ 085245, dated August 31, 1989 (on the classification of a men's nylon coat made of certain coated fabrics); HQ 087941, dated December 12, 1990 (on the classification of certain fusible interlining fabrics from Japan); and HQ 084165, dated June 26, 1989 (on the classification of certain fusible interlining fabrics).
Determinations on whether an impregnation, coating or covering can be seen with the naked eye are made on the basis of the characteristics of the specific fabric being ruled upon. The wording of Note 2(a)(1) to Chapter 59, HTSUS, does not consider the fact that the same amount of plastics application may be more visible on one fabric, or on one color fabric, than on another. See HQ 084165, dated June 26, 1989, and HQ 084285, dated July 20, 1989.
Applying the “visible to the naked eye” test on the textile underlayment at issue, using normally corrected vision in a well-lighted room, the coating was visibly distinguishable from the fabrics without the use of magnification. The fourth layer, a white plastic, is visible to the naked eye, which obscures the interstices of the third layer, a woven fabric. Consequently, we view the textile underlayment as being coated with a plastic material and properly classified in heading 5903, HTSUS.
The sample of the merchandise was sent to the CBP Laboratory for testing. Super House argues that the CBP Laboratory failed in multiple respects by using incorrect testing methods, and therefore its reports and conclusions are not reliable. We emphasize that determinations on whether a plastic layer can be seen with the naked eye are made on a case-by-case basis and, as stated by Super House, solely based on examination of the fabric with the unaided eye. Our examination of the merchandise clearly shows that the merchandise is coated with a plastic material. Therefore, the textile underlayment is properly classified in heading 5903, HTSUS, specifically subheading 5903.90.30, HTSUS.
HOLDING:
By application of GRI 1, the subject textile underlayment is classified under heading 5903, HTSUS, specifically under subheading 5903.90.30, HTSUS, which provides for “[t]extile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902: Other: Other.” The 2014 column one, general rate of duty is 2.7% ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/.
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 of Trade, Regulations and Rulings will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (“CROSS”) at http://rulings.cbp.gov/ which can be found on the U.S. Customs and Border Protection website at http://www.cbp.gov and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division