• HQ H305867
• Oct 22, 2020

• Type : Classification • HTSUS : 3921.12.15
•  Related:   960783; 964385; N303815; N306189; N306115; N302003; N304804   

OT:RR:CTF:FTM H305867 MJD

Center Director
Apparel, Footwear, and Textiles CEE
U.S Customs and Border Protection
6747 Engle Road
Middleburg Heights, OH 44130

Attn: Christopher Jeresko, Import Specialist

Re: Application for Further Review of Protest No. 2704-19-104647; Classification of Lazer Material from China

Dear Center Director:

The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 2704-19-104647, timely filed by Zisser Customs Law Group, PC, on September 24, 2019, on behalf of their client, Barbaras Development, Inc. (“Barbaras” or “Protestant”), concerning the tariff classification of lazer material from China under the Harmonized Tariff Schedule of the United States (“HTSUS”).

FACTS:

The merchandise under protest concerns the classification of a material the Protestant calls “Lazer Fabric.” The material is of a plain weave construction on one side, coated with plastic on the other side, and uniformly dyed. Protestant claims that the lazer material is “66% by weight plastic and 34% polyester textile fabric.” The lazer material is used for many applications, including, but not limited to, bags, tents, boat covers, grill covers, awnings, etc. The side of the material i.e., the coated plastic side or the textile side, that faces the inside or outside of the finished item depends on the application of the material and the preference of the manufacturer. The following is the manufacturing process of the lazer material according to the Protestant:

Polyester yarns are loosely woven together in a greige fabric condition. In this condition the weave is very loose and easily penetrated with virtually any solid object. The yarns are easily shifted and the fabric has little strength and provides limited resistance to manipulation of yarns in the weave pattern. The greige fabric is dyed. The dyed fabric is coated with a water based adhesive. In this condition the yarns are now bonded at their intersections and the yarns are no longer able to shift and move. With the adhesive material the woven fibers are stabilized and the fabric has excellent resistance to manipulation. The coated fabric is laminated with a [polyvinyl chloride] backing material. This represents the finished Lazer Fabric in its condition as imported into the United States from China. Unlike the application of the adhesive material, the lamination does not impact the strength and stability of the individual yarns.

The U.S. Customs and Border Protection (“CBP”) Chicago laboratory tested two samples of the lazer material, one blue and the other black. CBP laboratory report no. CH20190199, dated March 5, 2019, stated the blue fabric sample is “66% by weight rubber/plastics and 34% textile.” CBP laboratory report no. CH20190200, dated March 7, 2019, stated the black fabric is “69% by weight rubber/plastics and 31% textile.” Both laboratory reports provided that the samples are “coated on one side with polyvinyl chloride, a rubber/plastic material, and calcium carbonate, a filler. The fibers are man-made, polyester.” Furthermore, both laboratory reports opined that the lazer material did not “meet the specification in Note 9 of Section XI.” The samples of the lazer material were also tested by the CBP New York laboratory. The blue sample via laboratory report no. NY20200074, dated February 19, 2020, and the black sample via laboratory report no. NY20200073, dated March 9, 2020, were both found to be “composed of a woven fabric coated, covered, or laminated with a cellular plastic material.”

The lazer material was entered under subheading 5903.10.1500, HTSUSA (“Annotated”), which provides for “[t]extile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902: With poly(vinyl chloride): Of man-made fibers: Fabrics specified in note 9 to section XI: Over 60 percent by weight of plastics” which has a free rate of duty. CBP reclassified the lazer material under subheading 5903.10.2500, HTSUSA, which provides for “[t]extile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902: With poly(vinyl chloride): Of man-made fibers: Other: Other” which has a duty rate of 7.5% ad valorem.

ISSUE: What is the tariff classification of the lazer material?

LAW AND ANALYSIS:

Initially, we note that this matter 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. 2704-19-104647 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24 (b) because Protestant alleges that the decision against which the protest was filed involves questions of law and fact which have not been ruled upon by the Commissioner of CBP or his designee or by the Customs courts.

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 GRIs 2 through 6 may then be applied in order.

The 2018 HTSUS provisions under consideration are as follows:

3921: Other plates, sheets, film, foil and strip, of plastics: Cellular:

3921.12: Of polymers of vinyl chloride: Combined with textile materials: Products with textile components in which man-made fibers predominate by weight over any other single textile fiber:

3921.12.1500: Other…

* * *

5903: Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902: 5903.10: With poly(vinyl chloride):

Of man-made fibers: Fabrics specified in note 9 to section XI: 5903.10.1500: Over 60 percent by weight of plastics…

Other:

5903.10.2500: Other… * * *

The Notes to Chapter 39, HTSUS, provide in pertinent part:

2. This chapter does not cover: … (p) Goods of section XI (textiles and textile articles) … 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).

* * *

Note 1 to Section XI, HTSUS, which covers Chapter 59, provides 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.

Note 9 to Section XI, HTSUS, which includes Chapter 59, states the following:

The woven fabrics of chapters 50 to 55 include fabrics 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.

Note 2 to Chapter 59, HTSUS, provides, in pertinent part, that 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:

…

(5) Plates, sheets or strip of cellular plastics, combined with textile fabric, where the textile fabric is present merely for reinforcing purposes (chapter 39)

* * *

In understanding the language of 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 Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).

The ENs to Section XI, states in pertinent part, as follows:

The woven fabrics of Chapters 50 to 55 are products obtained by interlacing textile yarns (whether of the kinds classified in Chapters 50 to 55 or those regarded as twine, cordage, etc., of heading 56.07), rovings, monofilament or strip and the like of Chapter 54, loop waleyarn, narrow ribbons, braids or narrow fabrics (consisting of warp without weft assembled by means of an adhesive, etc.), on warp and weft looms. . .  . . . 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.   The ENs to Chapter 39 provides, in relevant part, as follow:

Plastics and textile combinations

Wall or ceiling coverings which comply with Note 9 to this Chapter are classified in heading 39.18. Otherwise, the classification of plastics and textile combinations is essentially governed by Note 1 (h) to Section XI, Note 3 to Chapter 56 and Note 2 to Chapter 59. The following products are also covered by this Chapter: … (d) Plates, sheets and strip of cellular plastics combined with textile fabrics (as defined in Note 1 to Chapter 59), felt or nonwovens, where the textile is present merely for reinforcing purposes.

In this respect, unfigured, unbleached, bleached or uniformly dyed textile fabrics, felt or nonwovens, when applied to one face only of these plates, sheets or strip, are regarded as serving merely for reinforcing purposes. Figured, printed or more elaborately worked textiles (e.g., by raising) and special products, such as pile fabrics, tulle and lace and textile products of heading 58.11, are regarded as having a function beyond that of mere reinforcement.

The ENs to Heading 39.21 provides, in relevant part, as follows:

This heading covers plates, sheets, film, foil and strip, of plastics, other than those of heading 39.18, 39.19 or 39.20 or of Chapter 54. It therefore covers only cellular products or those which have been reinforced, laminated, supported or similarly combined with other materials.

* * *

Protestant provides that the subject lazer material is classified in heading 5903, HTSUS, as a textile laminated with plastic. Specifically, Protestant asserts that the lazer material is a fabric specified in Note 9 to Section XI (“Note 9” or “Note 9 fabric”), HTSUS, classified in subheading 5903.10.1500, HTSUSA, which provides for “[t]extile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902: With poly(vinyl chloride): Of man-made fibers: Fabrics specified in note 9 to section XI: Over 60 percent by weight of plastics.” In order for a fabric to be considered a Note 9 fabric, it must have (1) layers of parallel textile yarns, that are (2) superimposed on each other at (3) acute or right angles. These layers are (4) bonded at the intersection of the yarns by an adhesive or by thermal bonding.

The lazer material at issue here is not a Note 9 fabric. While the yarns of the textile of the lazer material are at acute or right angles and are bonded at the intersection by an adhesive, they are not parallel, and they are not superimposed on each other, but are interlaced. Since the lazer material must meet all of the requirements of Note 9, we find that the lazer material is not a Note 9 fabric. Furthermore, the CBP Chicago laboratory substantiated the finding that the lazer material is not a Note 9 fabric via laboratory report no. CH20190199 and laboratory report no. CH20190200, by stating that the lazer material did not “meet the specification in Note 9 of Section XI.”

Most importantly, Note 1(h) to Section XI, HTSUS, which includes Chapter 59, provides that the section does not cover “Woven, knitted, or crocheted fabrics, felt or nonwovens, impregnated, coated, covered or laminated with plastics, or articles thereof, of chapter 39.” Note 2 to Chapter 59, HTSUS (“Note 2”) provides six exceptions to classification in heading 5903, HTSUS, one of which is Note 2(a)(5), which provides for products made of cellular plastic and textile fabric. Since the lazer material at issue here is composed of textile fabric, and cellular plastic material according to laboratory report no. NY20200074 and laboratory report no. NY20200073, we look to Note 2(a)(5). Note 2(a)(5) states that products are precluded from heading 5903, HTSUS, if they are comprised of “[p]lates, sheets or strip of cellular plastics, combined with textile fabric, where the textile fabric is present merely for reinforcing purposes (chapter 39).” In excluding merchandise from heading 5903, HTSUS, Note 2(a)(5) directs classification into Chapter 39, HTSUS, the chapter for merchandise made of plastics (and rubbers). In order to determine whether the textile fabric of a plastic is merely present for reinforcement purposes we look to the ENs to Chapter 39, HTSUS, for guidance.

The ENs to Chapter 39, HTSUS, provides, in pertinent part, the following:

Plastics and textile combinations … In this respect, unfigured, unbleached, bleached or uniformly dyed textile fabrics, felt or nonwovens, when applied to one face only of these plates, sheets or strip, are regarded as serving merely for reinforcing purposes. Figured, printed or more elaborately worked textiles (e.g., by raising) and special products, such as pile fabrics, tulle and lace and textile products of heading 58.11, are regarded as having a function beyond that of mere reinforcement. (emphasis added).

Upon examination we find that the textile fabric of the lazer material is present for mere reinforcement purposes and as a result the lazer material is properly classified in Chapter 39, HTSUS, not Chapter 59, HTSUS, or more specifically heading 5903, HTSUS. The lazer material at issue is quite basic in construction and not complex at all. In fact, most of the construction of the lazer material could be determined by visual inspection. The entire material is uniformly dyed, and the textile is of plain weave construction and is not “figured, printed or more elaborately worked” as stated in the ENs to Chapter 39, HTSUS. The fabric is then coated with a water based adhesive, which assists in applying the cellular plastic to the textile. Information about the lazer material which could not be ascertained without laboratory analysis was provided by CBP laboratory report no. CH20190199 and laboratory report no. CH20190200, which confirmed that the material is coated on one side with polyvinyl chloride and that the fibers are of man-made polyester. Also, CBP laboratory report no. NY20200074 and laboratory report no. NY20200073, specified the plastic of the lazer material is cellular in nature. Therefore, based on the fact that the fabric is not complex or unique in its construction, and is uniformly dyed and made of a simple woven textile fabric that has not been elaborately worked, we find that that lazer material is a plastic with a textile backing that is merely present for reinforcement, and is classified in heading 3921, HTSUS, and not heading 5903, HTSUS, as a textile fabric laminated with plastic.

In Headquarters Ruling Letter (“HQ”) 960783, dated June 3, 1998, CBP found that the textile backing of a two layer material used for golf bags, was for more than just reinforcing the plastic of the material. CBP stated that the textile served an explicit purpose which was to provide a soft interior lining for the golf clubs placed in the bags. Many of the golf clubs in the market were made with graphite shafted clubs which scratched the inside of the bags. Therefore, many of the bags were designed with a textile interior to reduce the abrasion caused by the golf clubs. Furthermore, the textile interior were coordinated to match the exterior of the bags which from a marketing standpoint appealed to consumer preference. Unlike, the textile material of the golf bags in HQ 960783, the textile of the lazer material does not serve an explicit purpose or any purpose at all. In fact, according to Barbaras, either side of the fabric can be used depending on the manufacture’s preferences and the end use of the item. Similarly in New York Ruling Letter (“NY”) N303815, dated May 8, 2019, CBP found that a three-layer fabric which consisted of a top outer layer of compact polyurethane, a middle layer of cellular polyurethane, and a bottom layer of woven fabric was classified in chapter 59, HTSUS, and not Chapter 39, HTSUS. CBP stated that the woven backing fabric was more than just reinforcement because the yarns were of “different shades of the same color, and the surface of the fabric [had] been brushed or ‘raised.” In the instant case, the lazer material, unlike the fabric in NY N303815, is uniformly dyed one color and the textile material has not been elaborately worked on like the brushed or raised backing of the fabric in NY N303815. See also NY N306189, dated October 10, 2019; NY N306115, dated October 4, 2019; NY N302003 dated August 8, 2019; NY N304804, dated July 3, 2019; and HQ 964385, dated December 3, 2001 (classifying products in Chapter 39, HTSUS, when the textile material was only present for reinforcing the cellular plastic). Accordingly, we find that the lazer material is a plastic with a textile backing applied to it for reinforcement of the material. As a result, the lazer material is classified in heading 3921, HTSUS, specifically in subheading 3921.12.1500, HTSUSA, which provides for “Other plates, sheets, film, foil and strip, of plastics: Cellular: Of polymers of vinyl chloride: Combined with textile materials: Products with textile components in which man-made fibers predominate by weight over any other single textile fiber: Other.” HOLDING:

By application of GRIs 1 and 6, the lazer material is classified under heading 3921, HTSUS, and specifically subheading 3921.12.1500, HTSUSA, which provides for “Other plates, sheets, film, foil and strip, of plastics: Cellular: Of polymers of vinyl chloride: Combined with textile materials: Products with textile components in which man-made fibers predominate by weight over any other single textile fiber: Other.” The 2018 column one, general rate of duty is 6.5% ad valorem.

You are instructed to DENY the protest, except to the extent reclassification of the merchandise as indicated above results in a partial allowance. 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 https://rulings.cbp.gov/, which can be found on the CBP website at http://www.cbp.gov and other methods of public distribution.

Sincerely,

For Craig T. Clark, Director
Commercial and Trade Facilitation Division