OT:RR:CTF:FTM H314149 MD
Center Director
Apparel, Footwear & Textiles
Center of Excellence and Expertise
1 East Bay Street
Savannah, Georgia 31405
Attn: Marchele Wilson, Import Specialist
RE: Application for Further Review of Protest No. 1703-20-102155; Tariff Classification of House Wrap
Dear Center Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 1703-20-102155, timely filed by Sharretts, Paley, Carter & Blauvelt, P.C., on January 27, 2020, on behalf of their client, Alpha Pro Tech Engineered Products Inc. (“Alpha Pro Tech” or “Protestant”) regarding U.S. Customs and Border Protection (“CBP”) tariff classification of house wrap within subheading 5903.90.2500, Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”).
FACTS:
The subject merchandise is described as “large rolls of [] plastic coated, woven fabrics consisting of 100 percent polypropylene, to be used as house wrap products” during construction to protect the properties from water infiltration. Specifically, the house wrap “is applied over the wood[en] [frame], but before the siding.” Identified within the AFR are four variants of house wrap; “ZR-HW-09J-PRO-C,” “ZW-HW-10J-PRO-C,” “ZR-HW-09J-PW-001,” and “ZR-HW-HW-10J-PW-001.”
Protestant entered three shipments of house wrap in July 2017 at the Port of Charleston, South Carolina under subheading 5903.90.1500, HTSUSA, which provides for “Textile fabrics impregnated, coated, covered or laminated with plastics other than those of heading 5902: With poly(vinyl chloride): Other: Of man-made fibers: Fabrics specified in Note 9 to Section XI: Over 60 percent by weight of plastics.” However, upon review of the subject merchandise, CBP at the Port of Charleston re-classified them under subheading 5407.20.0000, HTSUSA, which provides for “Woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404: Woven fabrics obtained from strip or the like.” In support of their re-classification of the house wraps, CBP cited New York Ruling Letter (“NY”) M84411, dated July 11, 2006, which was previously issued to Protestant.
This re-classification was also based on the review of the sample by the National Commodity Specialist Division (“NCSD”). As part of their review, NCSD analyzed a sample of the subject merchandise, taking both the construction of the product and its coating into consideration. Noted above, CBP’s initial review of the house wraps found that its coating was clear and did not meet the visibility requirements set forth by Note 2(a)(1) to Chapter 59, HTSUS. As such, the house wrap was re-classified under subheading 5407.20.0000, HTSUSA. However, upon the second review of the sample, NCSD found that the coating was not clear, but rather opaque. As a result, CBP indicated that the correct classification of the house wraps was subheading 5903.90.2500, HTSUSA, which provides for “Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902: Other: Other: Other.”
Subsequently, Alpha Pro Tech submitted this protest, asserting that “[t]he plastic coating on the products which are the subject of this protest, like the plastic coating on the fabric, which was the subject of CBP Ruling NY M84411, is not visible to the naked eye except for a change of color.” Protestant notes that “pursuant to Note 2, Chapter 59, HTSUS, the products in question are not coated fabrics within the scope of heading 5903,” as they are precluded from classification within heading 5903, HTSUS, at-large. Instead, Protestant states that the rationale set forth in NY M84411 supports the initial conclusion of CBP upon their review of the subject merchandise in Charleston – classification within subheading 5407.20.0000, HTSUSA.
To assist in reviewing this protest, we requested additional samples for our New York Laboratory to review. These samples were furnished in December 2020 and sent in for analysis. We received two reports from CBP’s the New York Laboratory; NY20210163S and NY20210389S, both finalized on April 19, 2021. Whereas NY20210163S analyzed a sample of “ZR-HW-09J-PW-001,” NY20210389S analyzed a sample of “ZR-HW-09J-PRO-C.” Both reports described their respective samples as “a swatch of white, woven fabric” which “was determined to be composed of strips made wholly of polypropylene.” The reports also noted that each respective sample was “coated, covered, impregnated, or laminated with plastic type material (polypropylene) on one side.”
On July 27, 2021, CBP held a conference with Protestant and their counsel to discuss the subject merchandise. During this conference, Protestant noted that the initial description of the four variants of house wraps within the initial protest was incorrect. Specifically, Protestant detailed that the subject merchandise was not “coated on one side only with a white matte finish.” Instead, Protestant stated that the house wraps were white in color with an application of clear coating on one side. Moreover, Protestant stated that the house wraps at-issue were identical to those contemplated in NY M84411, dated July 11, 2006. The subject merchandise discussed within NY M84411, a “100% polypropylene woven fabric, was described as “coated with a[n] application of plastic on one side,” which was “not visible to the naked eye,” and was ultimately classified within subheading 5407.20.0000, HTSUSA. CBP requested supplemental information from Protestant to demonstrate that the subject house wrap was identical to the house wrap discussed in NY M84411. On October 13, 2021, Protestant provided CBP with supplemental information in the form of quality system documentation detailing their product lines in both 2007 and 2021.
ISSUE:
What is the proper tariff classification of the house wraps?
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. (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. 1703-20-102155 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) because the decision against which the protest was filed is alleged to be inconsistent with a decision made at any port with respect to the same or substantially similar merchandise. Specifically, Protestant alleges that the action of the port is inconsistent with NY M84411, dated July 11, 2006, which classified the merchandise in this case under subheading 5407.20.0000, HTSUSA.
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
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, GRIs 2 through 6 may then be applied in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to GRIs 1 through 5.
The HTSUS provisions under consideration are as follows:
5407 Woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404:
5407.20.0000 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:
Of man-made fibers:
Fabrics specified in note 9 to section XI:
5903.90.1500 Over 60 percent by weight of plastics.
5903.90.25 Other:
Other.
5903.90.30 Other:
5903.90.3090 Other.
* * *
Note 2(a)(1) to Chapter 59, HTSUS states:
2. Heading 59.03 applies to:
Textile fabrics, impregnated, coated, covered or laminated with plastics, whatever the weight per square metre 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 colour.
Note 5(a) to Chapter 59, HTSUS states:
5. Heading 59.07 does not apply to:
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 colour.
* * *
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the “official interpretation of the Harmonized System” at the international level. See 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). 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 Id.
The ENs for Heading 5404 state, in relevant part:
This heading covers:
(2) Strip and the like, of synthetic textile materials. The strips of this heading are flat, of a width not exceeding 5 mm, either produced as such by extrusion or cut from wider strips of from sheets.
Provided their apparent width (i.e., in the folded, flattened, compresses or twisted state) does not exceed 5mm, this heading also covers:
Strip folded along the length.
Flattened tubes, whether or not folded along the length.
Strip, and articles referred to in (i) and (ii) above, compressed or twisted.
If the width (or apparent width) is not uniform, classification is to be decided by reference to the average width.
* * *
In applicable part, the ENs for Heading 5407 read as follows:
This heading covers woven fabrics (as described in Part (I) (C) of the General Explanatory Note to Section XI) made of synthetic filament yarn or of monofilament of strip of heading 54.04; it includes a very large variety of dress fabrics, linings, curtain materials, furnishing fabrics, tent fabrics, parachute fabrics, etc.
* * *
The ENs for Heading 5903 state, in pertinent part
This heading covers textile fabrics which have been impregnated, coated, covered or laminated with plastics (e.g. poly(vinyl chloride)).
Such products are classified here whatever their weight per m2 and whatever the nature of the plastic component (compact or cellular), provided:
That, in the case of impregnated, coated or covered fabrics, the impregnation, coating or covering can be seen with the naked eye otherwise than by a resulting change in colour.
* * *
As noted, Protestant asserts that the house wraps at-issue are properly classified within subheading 5407.20.0000, HTSUSA, which provides for “Woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404: Woven fabrics obtained from strip of the like.” Specifically, Protestant contends that the house wraps at-issue are identical to those previously classified by CBP in NY M84411, dated July 11, 2006. The subject merchandise within NY M84411 was described as “a plain woven fabric composed of 100% polypropylene,” which had “been coated with a[n] application of clear plastic on one side.” As the “clear plastic coating” was determined to “not [be] visible to the naked eye,” CBP classified the house wrap within subheading 5407.20.0000, HTSUSA.
Here, the subject house wraps have likewise been described as “plastic coated, woven fabrics consisting of 100 percent polypropylene.” CBP Laboratory reports elaborate that the house wraps are “composed of yarns made wholly of polypropylene,” and that each “is coated, impregnated, or laminated with plastic type material (polypropylene) on one side.” Moreover, supplemental information provided by Protestant details that production of house wrap products made of 100 percent polypropylene, with a plastic coating on one side, have been continuous and uninterrupted since just after NY M84411 was decided. In fact, the only difference between the house wraps at issue here and those classified within NY M84411 was that the former was initially described as “coated on one side only with a white matte finish;” however, our conference with Protestant demonstrated that this description was not reflective of the subject merchandise. Instead, Protestant conveyed that the underlying polypropylene woven fabric was white in color and that its plastic coating was clear in color. Furthermore, while NY M84411 does not elaborate on the color of the underlying polypropylene woven fabric, the similarities between that house wrap product and the house wrap at-issue – combined with the supplemental information supplied by Protestant – demonstrate that the products are one in the same. As such, we agree with Protestant’s assertion that the house wrap contemplated within NY M84411 is the identical to the house wrap at-issue here.
The complete analyses set forth in the CBP’s New York Laboratory Reports enumerate several important facts, confirming Protestant’s contention that the house wraps at-issue here are of mutual identity to those discussed within NY M84411. First, the New York Laboratory Reports confirm the composition of the house wraps as made from polypropylene strips. Second, the reports note the dimensions of the strips themselves – thereby solidifying their status as “textile strips” for the purposes of the HTSUS. Lastly, the reports explicitly describe the house wraps as “white” with a coating of polypropylene. Thus, at-issue is whether or not this coating is visible to the naked eye. If the coating is not visible to the naked eye, the house wraps will be excluded from heading 5903, HTSUS, and will be classified in heading 5407, HTSUS.
Although there is no definition within the HTSUS of whether or not a coating is “visible to the naked eye,” CBP has set forth several factors to consider when determining what constitutes a coating that can be seen with the naked eye within the meaning of Chapter 59, Note 2(a)(1). In Headquarters Ruling Letter (“HQ”) 955031, dated March 30, 1994, CBP stated:
The sole criter[ion] upon which Customs is to determine whether fabric is coated for purposes of classification under heading 5903, HTSUSA, is based on visibility: fabric is classifiable in Chapter 59 if the plastic coating is visible to the naked eye. This standard does not allow for the examiner to take the “effects” of plastic into account. Plastic coating will often result in a change of color, increase in the fabric’s stiffness[,] or lend a sheen to fabric: these are factors which while indicative of the presence of plastic, may not be taken into account in determining whether the plastic itself is visible to the naked eye. The prohibition against taking a change of color into account is explicitly set forth in Chapter Note 2(a)(1). Stiffness is not a reliable indicator of coating because it may dissipate or entirely disappear over time, and it is detected more by touch than by visual inspection. Sheen may be imparted to a fabric by the application of coating, but this too is an unreliable indicator of the presence of coating inasmuch as it may be imparted to fabric by means of heat calendaring and other methods of treating fabric which do not involve the application of coating.
The following rulings also provide substantial guidance on the factors giving rise to coatings which are considered “visible to the naked eye:” HQ 083194, dated December 18, 1989 (the pattern on the fabric was obscured and the plastic coating filled the intersections of the weave); HQ 086846, dated July 23, 1990 (the plastic was visible at the interstices of the yarns of the fabric when the fabric was held up to the light); HQ 957850, dated July 5, 1995 (wherein a plastic coating was clearly visible when viewed in cross section); HQ 088769, dated May 23, 1991 (a partial obscuring of the underlying weave pattern was attributable to the coating and found to be an indication of a visible coating); HQ 950022, dated September 26, 1991 (where all interstices of fabric weave were filled with polyurethane so as to leave no gaps was found to have a visible coating; however, when noticeable gaps were found in the fabric weave where plastic had not occluded, the fabric was found not to be visibly coated); HQ 952705, dated January 22, 1993 (the dull appearance of fabric was not an indication of visible coating); HQ 953407, dated July 12, 1993 (visible coating was found where the coating “blurred the surface of the fabrics”; HQ 950468, dated January 2, 1992 (a visible coating was found where the plastic coating changes the visual or surface characteristics of the fabric).
Also taken into consideration is HQ W968381, dated November 20, 2007, in which CBP found that a number of factors may be considered when making a Note 2 to Chapter 59, HTSUS, determination on the visibility of a coating to the naked eye. These include: Whether the coating has visibly altered the surface of the fabric (See HQ 967884, dated October 26, 2005); whether the plastic is visible in the interstices of the fabric (See HQ 961172, dated August 6, 1998); whether the thread or weave is blurred or obscured (See HQ W968381, dated November 20, 2007); and whether the surface of the fabric is leveled or smoothed and whether the coating itself creates a distinct visible pattern (Id.). For the purposes of Note 2(a)(1) to Chapter 59, HTSUS, and in making a determination as to whether or not the coating on subject fabrics is visible to the naked eye, we consider each of the above-referenced factors, which are not exclusive and none of which are determinative. See HQ W968300, dated February 8, 2007.
Under each of the aforementioned criteria, in this case, the clear plastic coating was not visible to the naked eye upon visual inspection. As such, we find that the house wraps at-issue are excluded from classification within heading 5903, HTSUS. Instead, we find that the house wraps are properly provided for within heading 5407, HTSUS; specifically, within subheading 5407.20.0000, HTSUSA, which provides for “Woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404: Woven fabrics obtained from strip of the like.”
HOLDING:
By application of GRIs 1 and 6, the subject house wraps, designated as styles “ZR-HW-09J-PRO-C,” “ZW-HW-10J-PRO-C,” “ZR-HW-09J-PW-001,” and “ZR-HW-HW-10J-PW-001,” are properly classified under subheading 5407.20.0000, HTSUSA, which provides for “Woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404: Woven fabrics obtained from strip of the like.” The general, column one duty rate is free.
You are instructed to GRANT the protest.
You are instructed to notify the protestant of this decision no later than 60 days from the date of this decision. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to this notification. 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