OT:RR:CTF:FTM H310928 MJD
Center Director
Pharmaceutical, Health and Chemical Center
1100 Raymond Blvd 4th Floor
Newark, NJ 07102
Attn: Lisa Olsen, Supervisory Import Specialist; Angela Hultz, Supervisory Import Specialist; and Stephen Bono, Import Specialist
Re: Application for Further Review of Protest No. 3004-20-100247; Classification of Roofing Underlayments
Dear Center Director:
This is in reference to the Application for Further Review (“AFR”) of Protest No. 3004-20-100247 (“Protest”), timely filed by Crowell & Moring LLP, on February 5, 2020, on behalf of their client, DuPont Specialty Products USA, LLC., (hereinafter “Protestant” or “DuPont”), contesting U.S Customs and Border Protection’s (“CBP”) tariff classification of several roofing underlayments under the Harmonized Tariff Schedule of the United States (“HTSUS”). This Protest pertains to four multi-layered textile underlayments for use in roofing projects to protect the construction from water damage and moisture infiltrations while also providing a nonslip feature for those working on the roof construction and grip to the shingles to keep them from sliding. The instant AFR concerns ten entries made between February 13, 2019 and March 29, 2019, and liquidated on August 23, 2019 at the Port of Blaine, Washington. Protestant requested, and CBP granted, a teleconference that was held on May 14, 2021. Our decision is set forth below.
Protestant has asked that certain information submitted in connection with this Protest be treated as confidential, pursuant to 19 C.F.R. § 177.2(b)(7). The request for confidentiality is approved. Information regarding the weight of each layer in the roofing underlayments, will not be released to the public and will be withheld from published versions of this decision.
FACTS:
At issue in this AFR are four multi-layered roofing underlayments products: (1) Roof Pro, (2) ProTec 120, (3) ProTec 160, and (4) ProTec 200. Protestant provides that the Roof Pro and ProTec product lines have the same four layers of construction, which serve the same function, but the weight of the layers varies depending on the type of product. The top and third layers of each roofing underlayment are 25% or more of the overall weight of each product, and the second and bottom layers of each roofing underlayment are less than 25% of the overall weight of each product. The following is a description of each layer of the Roof Pro and ProTec products, according to Protestant:
The top layer is a nonwoven fabric, comprised of nonwoven polypropylene, an ultraviolet light (“UV”) protection additive, and a pigment. The function of this layer is to provide grip to a person walking on the roof surface while shingling the roof, and to provide grip to the shingles to keep them from sliding. These are easily the most important functions of the underlayment. They provide for safety of the roofer, to keep them from falling off the roof and harming themselves; and they provide grip to the shingles to hold them in place and prevent water intrusion into the structure.
The second layer is a bonding layer, comprised of polypropylene, low density polyethylene (“LDPE”), a UV additive, and pigment. The function is to bond the top and third layers together, and to provide a water barrier.
The third layer is a woven scrim layer, comprised of woven polypropylene, calcium carbonate, and a UV additive. The function of the scrim layer is to provide mechanical strength and dimensional stability to the product.
The fourth layer is a grip coating, comprised of polypropylene, LDPE, a thermoplastic
elastomer, and a pigment. This layer provides grip from the underlayment to the roof
surface.
At the time of entry, DuPont classified the Roof Pro and ProTec roofing underlayments under subheading 5603.13.0090, HTSUSA (“Annotated”), which provides for “[n]onwovens, whether or not impregnated, coated, covered or laminated: Of man-made filaments: Weighing more than 70 g/m^2 but not more than 150 g/m^2: Other.” On April 9, 2019, CBP sent DuPont a Request for Information (CBP Form 28) concerning the Roof Pro 42/1067 L286/87 P49 (“Roof Pro”) product. The CBP laboratory tested a sample of the Roof Pro underlayment via laboratory report no. SF20190542, dated June 26, 2019, and found that the sample is a “multi-layered fabric . . . coated with plastic on one side . . . [and] composed wholly of polypropylene textile and plastic.” The lab report also stated that the fabric has three layers by weight consisting of [**]% polypropylene nonwoven, not felt, textile fabric; [**]% polypropylene woven synthetic textile strip; and [**]% polypropylene plastic coating. Moreover, the laboratory report stated that most of the Roof Pro sample is composed of “two polypropylene textile fabric. . . [and] less than 70% plastic.” The Roof Pro and ProTec products were then reclassified under subheading 5903.90.3090, HTSUSA, which provides for “[t]extile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902: Other: Other: Other.”
Subsequently, the CBP laboratory tested samples of the ProTec 120, ProTec 160, and ProTec 200 and found that like the Roof Pro product, the underlayments were “multi-layered fabric . . . coated with plastic on one side . . . [and] composed wholly of polypropylene textile and plastic.” Similarly, like the Roof Pro product, the ProTec products have three layers, and most of the roofing underlayments are comprised of “two polypropylene textile fabric layers . . . [and] less than 70% plastic.” Specifically, laboratory report no. SF20200225, dated March 23, 2020, reported that the ProTec 120 is composed of [**]% polypropylene nonwoven, not felt textile fabric; [**]% polypropylene woven synthetic textile strips; and [**]% polypropylene plastic coating by weight. Laboratory report no. SF20200226, dated March 23, 2020, reported that the ProTec 160 is composed of [**]% polypropylene nonwoven, not felt, textile fabric; [**]% polypropylene woven synthetic textile strips; and [**]% polypropylene plastic coating by weight. Laboratory report no. SF20200227, dated March 23, 2020, stated that the ProTec 200 is composed of [**]% polypropylene nonwoven, not felt, textile fabric; [**]% polypropylene woven textile strips; and [**]% polypropylene plastic coating by weight.
ISSUE:
What is the tariff classification of the Roof Pro and ProTec roofing underlayments at issue?
LAW AND ANALYSIS:
Initially, we note that the 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 entries. (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. 3004-20-100247 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 or fact which have not been ruled upon by the Commissioner of CBP or his designee or by the Customs courts.
The 2019 HTSUS provisions under consideration are as follows:
5603 Nonwovens, whether or not impregnated, coated, covered or laminated:
* * * * *
5903 Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902:
* * * * *
GRI 3(a) and (b) provide as follows:
When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or put substances contained in mixed or composite goods or to part only of the items in a set up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.
(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
* * * * *
In addition, in interpreting the HTSUS, the Explanatory Notes (“ENs”) of the Harmonized Commodity Description and Coding System may be utilized. The ENs to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff 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 EN to GRI 3(b) state, in pertinent part:
This second method relates only to:
Mixtures.
Composite goods consisting of different materials.
Composite goods consisting of different components.
Goods put up in sets for retail sales.
It applies only if Rule 3(a) fails.
In all these cases the goods are to be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.
For the purposes of this Rule, composite goods made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts.
[…]
* * * * *
It should be noted at the onset that Protestant describes the Roof Pro, ProTec 120, ProTec 160, and ProTec 200 roofing underlayments as having four layers: a nonwoven fabric layer, a bonding layer, a woven scrim layer, and a grip coating layer. However, CBP tested the Roof Pro and ProTec products and found them to have three layers, not four. According to the CBP laboratory, the Roof Pro and ProTec products have a nonwoven, not felt, textile fabric layer; a layer of woven synthetic strips; and a layer of plastic coating. The CBP laboratory measured the plastic material i.e., what the Protestant calls the bonding layer and the grip coating layer as one. As a result, we will rely on CBP’s laboratory results of these products for this Protest. See Headquarters Ruling Letter (“HQ”) 955711, dated July 21, 1994, (stating that CBP will rely on their laboratory results absent evidence that shows the testing procedures or methodologies utilized by CBP were flawed).
All four roofing underlayments are composite goods made up of a plastic-coated woven scrim layer classified in heading 5903, HTSUS, and a nonwoven textile fabric layer classified in heading 5603, HTSUS. When a textile fabric is visibly coated with plastic, as is the case here, the textile fabric and plastic material is classified as a single material for tariff purposes under Chapter 59, specifically in this case, heading 5903, HTSUS. The roofing underlayments also contain a nonwoven textile fabric layer classified in heading 5603, HTSUS. Since the roofing underlayments are made up of different components that are classified in more than one heading, GRI 1 does not apply. Instead, we look to GRI 2 which directs us to GRI 3, specifically GRI 3(b) in this instance. GRI 3(b) provides that composite goods made up of different components should be classified as if they consisted of the material or component that gives them their essential character. According to EN IX for GRI 3(b), a composite good is a good that is made up of different components that are attached to each other to form a practically inseparable whole. The subject roofing underlayments are composite goods because they are multi-layered underlayments made up of different components, a plastic-coated woven scrim layer and a nonwoven textile fabric. GRI 3(b) provides that a composite good is classified “as if they consisted of the material or component which gives them their essential character.” Therefore, GRI 3(b) requires that classification of the Roof Pro and ProTec products be based on the material or component that imparts the goods with their essential character.
The “essential character” of an article is “that which is indispensable to the structure, core or condition of the article, i.e., what it is.” Structural Industries v. United States, 360 F. Supp. 2d 1330, 1336 (Ct. Int’l Trade 2005). EN VIII to GRI 3(b) explains that “[t]he factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of the constituent material in relation to the use of the goods.” Court decisions on the essential character for GRI 3(b) purposes have looked primarily to the role of the constituent material in relation to the use of the goods. See Estee Lauder, Inc. v. United States, 815 F. Supp. 2d 1287, 1296 (Ct. Int’l Trade 2012); Structural Industries, 360 F. Supp. 2d 1330; Conair Corp. v. United States, 29 CIT 888 (2005); Home Depot USA, Inc. v. United States, 427 F. Supp. 2d 1278 (Ct. Int’l Trade 2006), aff’d 491 F.3d 1334 (Fed. Cir. 2007).
Protestant provides that the essential character of the Roof Pro and ProTec products is the nonwoven top layer of the products classified in heading 5603, HTSUS, because it is the layer that “provides grip to a person walking on the roof surface while shingling the roof, and . . . grip to the shingles to keep them from sliding.” DuPont says that these are “easily the most important functions of the underlayment. They provide for safety of the roofer, to keep them from falling off the roof and harming themselves; and they provide grip to the shingles to hold them in place and prevent water intrusion into the structure.” Moreover, DuPont states that the factors listed in EN (VII) to GRI 3 weigh in favor of the nonwoven top layer of the ProTec products as the essential character of the products because the nonwoven top layer weighs more and cost more. With respect to the Roof Pro product, Protestant claims that although the woven scrim layer is higher in weight and cost than the nonwoven top layer, the function of the nonwoven layer i.e., the safety it provides and grip to the shingles is more important to the function of the underlayments then the woven scrim layer. Therefore, Protestant asserts that the essential character of the Roof Pro and ProTec products is the nonwoven top layer classified in heading 5603, HTSUS.
We disagree with Protestant’s assertion that the nonwoven top layer of the roofing underlayments classified in heading 5603, HTSUS, is the essential character of the products. While the gripping functions of the nonwoven top layer are important to the roofing underlayments at issue, we find that they are an additional feature of the roofing underlayments, and not the most essential aspect for GRI 3(b) purposes. The essential character of a product is that which is “indispensable” to the product, what makes the product “what it is.” See Structural Industries, 360 F. Supp. 2d 1330. In the instant case, what makes the Roof Pro and ProTec products “indispensable,” and what makes the products roofing underlayments is not their griping abilities, it is their primary function, which is to protect a roof from water damage and moisture infiltration from the effects of snow, rain, wind, etc. Consumers purchase roofing underlayments precisely for this reason; because they function as a layer of protection against weather conditions that can cause water damage and moisture infiltration to roofs. When the woven scrim layer is coated with plastic it becomes a much stronger material, which provides protection against the elements of whether, creating a nearly waterproof layer. As a result, it is the plastic-coated woven scrim layer classified in heading 5903, HTSUS, that provides this water resistance to the roofing underlayments and thus functions as the essential character of the products. Therefore, the essential character of all four roofing underlayments is the plastic-coated woven scrim layer classified in heading 5903, HTSUS, because of its water resistance capabilities.
CBP has previously considered the classification of multi-layered roofing underlayment wherein the component materials were predominated by textile fabrics, which are coated or laminated with plastics. For example, in HQ H305437, dated December 18, 2020, CBP classified the Pro-20, Gold, Silver, and Platinum multi-layered roofing underlayments of FT Synthetics under heading 5903, HTSUS. The underlayments had a top layer of nonwoven fabric, a middle (polyolefin) lamination layer, a woven textile (scrim layer), and a back/bottom (polyolefin) coating layer. We found that the laminated and coated woven textile fabrics classified in heading 5903, HTSUS, imparted the essential character of the roofing underlayments. We stated that “when assessing the role of the top spun bond nonwoven layer, with its “non-slip” technology and the role of the polyolefin and the polypropylene layers, we find that the polyolefin construction is more essential to the functioning of the roofing materials as a whole.” Moreover, we stated that the “role served by the polyolefin construction’s water resistance capacity is vital to protecting the underlying roof structure against water penetration. As with roofing materials generally, protecting against weather conditions and water (rain) penetration is a role that contributes to the very essence and purpose of a roof.” See also New York Ruling Letter (“NY”) N305964, dated September 25, 2019; NY N300457, dated October 2, 2018; NY N255065, dated August 6, 2014; NY N253035, dated May 13, 2014; NY N250680, dated March 25, 2014; NY N250876, dated March 25, 2014; NY N217610, dated June 8, 2012; NY N104376, dated May 27, 2010; NY N098937, dated April 23, 2010; NY N055596, dated April 23, 2009 (classifying material “A” roofing underlayment under heading 5903, HTSUS); NY N052923, dated March 26, 2009 (classifying material “A” roofing underlayment under heading 5903, HTSUS); NY N049058, dated February 11, 2009; and NY M82062, dated April 11, 2006. We find that like the roofing underlayments in the abovementioned cases, the Roof Pro and ProTec Products in this case are classified in heading 5903, HTSUS.
Based on the foregoing, we conclude that the Roof Pro, ProTec 120, ProTec 160, and ProTec 200 are classified under heading 5903, HTSUS, and specifically under subheading 5903.90.2500, HTSUSA, which provides for “[t]extile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902: Other: Of man-made fibers: Other: Other.”
HOLDING:
By application of GRI 3(b), we find that the Roof Pro, ProTec 120, ProTec 160, and ProTec 200 are classified under heading 5903, HTSUS, and specifically under subheading 5903.90.2500, HTSUSA, which provides for “[t]extile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902: Other: Of man-made fibers: Other: Other.” The 2019 column one, general rate of duty is 7.5%.
Since the rate of duty under the classification indicated above is more than the liquidated rate, 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 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 U.S. Customs and Border Protection website at http://www.cbp.gov and other methods of public distribution.
Sincerely,
For Craig T. Clark, Director
Commercial and Trade Facilitation Division