OT:RR:CTF:FTM H328910 PJG
Mr. Todd Schuhardt
United Bags Inc.
1355 N. Warson Road
St. Louis, Missouri 63132
RE: Revocation of NY N325833, NY N250680, NY N250876, NY I80730, NY I88153, NY E86552, HQ 956946, HQ 957915, HQ 957850, NY M82062, NY L88431, NY L83415, and HQ 958462; Modification of HQ H310928, HQ H305437, NY M87513, NY M83066, NY L87626, NY L85660, NY L80040, NY A85760, NY 889417, NY 892226, and HQ 086130; Tariff Classification of Coated or Laminated Woven Textile Fabrics of Strip of an Apparent Width Not Exceeding 5 mm; Revoked or Modified by Operation of Law
Dear Mr. Schuhardt:
This is in reference to New York Ruling Letter ("NY") N325833, dated May 25, 2022, issued to you concerning the tariff classification of a laminated box sleeve woven of polypropylene strip of an apparent width not exceeding 5 mm, under the Harmonized Tariff Schedule of the United States Annotated ("HTSUSA").
In NY N325833, U.S. Customs and Border Protection ("CBP") classified the laminated box sleeve woven of polypropylene strip in heading 5903, HTSUS, and specifically in subheading 5903.90.2500, HTSUSA, which provides for "Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902: Other: Of man-made fibers: Other: Other." We have reviewed NY N325833 and find it to be in error regarding the tariff classification at the eight-digit level.
We have also reviewed NY N250680, dated March 25, 2014, and NY N250876, dated March 25, 1994, which concerned the tariff classification of roofing underlayment materials composed of coated woven textile fabrics of strip of an apparent width not exceeding 5 mm in width. For the reasons set forth below, we are revoking NY N325833, NY N250680, and NY N250876.
For the reasons set forth below, we are also modifying the following two decisions: Headquarters Ruling Letter ("HQ") H310928, dated June 11, 2021, and HQ H305437, dated December 18, 2020. HQ H310928 was a decision on an Application for Further Review ("AFR") of protest number 3004-20-100247 with respect to the tariff classification of four styles of roofing underlayments, specifically, the Roof Pro, ProTec 120, ProTec 160, and ProTec 200. In HQ H310928, CBP determined that the essential character of the four products was imparted by the layer of woven plastic-coated scrim of strip of an apparent width not exceeding 5 mm. The modification for HQ H310928 concerns the legal analysis applied and the tariff classification determination made at the eight-digit level for the four products, which were originally classified in subheading 5903.90.25, HTSUS. The identified articles are still properly classified subject to GRI 3(b) and 6.
HQ H305437 was an AFR decision concerning the tariff classification of six styles of roofing underlayments subject to protest number 3004-19-100105. Only four of those styles are subject to modification, specifically, the Pro-20, Gold, Silver, and Platinum styles. In HQ H305437, CBP determined that the laminated and coated textile fabrics imparted the essential character of these four products. The nonwoven layer of the underlayment was laminated to a coated scrim woven of 3 mm polypropylene strip. The modification concerns the legal analysis applied and the tariff classification determination made at the eight-digit level for the four styles of roofing underlayments, which were originally classified in subheading 5903.90.25, HTSUS. The identified articles are still properly classified subject to GRI 3(b) and 6.
We note that under S.F. Newspaper Printing Co. v. United States, 9 Ct. Int'l Trade 517, 620 F. Supp. 738 (1985), the decisions on the merchandise which was the subject of protest numbers 3004-20-100247 and 3004-19-100105 were final and binding on both the protestant and CBP. Therefore, while we may review the law and analysis of HQ H310928 and HQ H305437, any decision taken herein do not impact the entries subject to those decisions.
Finally, this ruling identifies nineteen rulings issued by CBP prior to 2007 that are revoked or modified by operation of law. Rulings concerning the tariff classification of coated or laminated woven textile fabrics of strip of an apparent width not exceeding 5 mm that were issued prior to 2007 are revoked or modified by operation of law because they pre-date the amendment to Note 1 to Chapter 54, HTSUS, which effectively precluded "[s]trip and the like of heading 5404 or 5405" from "man-made fibers."
The following nine rulings are modified by operation of law: NY M87513, dated October 24, 2006 (with respect to Sample #1); NY M83066, dated May 5, 2006 (with respect to style EH63-060403); NY L87626, dated September 16, 2005 (with respect to style "Vietnam 7 x 7 CIS"); NY L85660, dated June 15, 2005 (with respect to items "C" and "D"); NY L80040, dated October 28, 2004 (with respect to Samples "E,"[1] "F" and "G"); NY A85760, dated August 14, 1996 (with respect to the laminated woven bulk container bag fabric); NY 892226, dated December 1, 1993 (with respect to the first item); NY 889417, dated September 1, 1993 (with respect to Sample #2); and HQ 086130, dated March 1, 1990 (with respect to "Sample 2 from the second letter").
The following seven rulings are revoked by operation of law: NY I80730[2], dated May 7, 2002, NY I88153, dated November 25, 2002; NY E86552, dated September 8, 1999;
HQ 956946, dated April 6, 1995; HQ 957915, dated July 28, 1995; HQ 957850, dated July 5, 1995; and HQ 958462, dated November 2, 1995.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed action was published on December 13, 2023, in Volume 57, Number 46, of the Customs Bulletin. One comment, which will be addressed below, was received in response to this notice. The commenter identified the following three additional rulings that would be subject to the changes discussed in this ruling: NY M82062, dated April 11, 2006, NY L88431, dated October 28, 2005, and NY L83415, dated March 23, 2005. We have reviewed the three rulings and determined that they are revoked by operation of law. This ruling now includes a total of nineteen rulings that are revoked or modified by operation of law.
FACTS:
In NY N325833, the fabric at issue was tubular laminated fabric constructed wholly of woven polypropylene strip. You indicated to CBP that the purpose of the product is to provide rigidity when placed over corrugated cardboard boxes at food packaging plants. You further indicated that the fabric is laminated on one surface with a plastic film composed of polypropylene and polyethylene and that the film is applied to the fabric after being extruded and is then pressed and cooled to permanently bond the materials. You also provided that the polypropylene strip measures 2.3 mm in width. CBP determined that the fabric was laminated in accordance with the requirements of Note 3 to Chapter 59, HTSUS, and that the product is classified under heading 5903, HTSUS, and specifically, in subheading 5903.90.2500, HTSUSA.
ISSUE:
Whether the fabric is classified as a product of subheading 5903.90.2500, HTSUSA, which provides for "Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902: Other: Of man-made fibers: Other: Other," or as a product of subheading 5903.90.30, HTSUS, which provides for "Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902: Other: Other."
LAW AND ANALYSIS:
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 GRI may then be applied.
The 2024 HTSUS provisions under consideration are as follows:
3921 Other plates, sheets, film, foil and strip, of plastics:
Cellular:
* * *
3921.19.00 Of other plastics
* * *
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
* * *
5903 Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902:
* * *
5903.90 Other:
* * *
Of man-made fibers:
* * *
Other:
* * *
5903.90.2500 Other
5903.90.30 Other:
Note 1 to Chapter 54, HTSUS, provides as follows:
Throughout the tariff schedule, the term "man-made fibers" means staple fibers and filaments of organic polymers produced by manufacturing processes, either:
a) By polymerization of organic monomers to produce polymers such as polyamides, polyesters, polyolefins or polyurethanes, or by chemical modification of polymers produced by this process (for example, poly(vinyl alcohol) prepared by the hydrolysis of poly(vinyl acetate)); or
b) By dissolution or chemical treatment of natural organic polymers (for example, cellulose) to produce polymers such as cuprammonium rayon (cupro) or viscose rayon, or by chemical modification of natural organic polymers (for example, cellulose, casein and other proteins, or alginic acid), to produce polymers such as cellulose acetate or alginates.
The terms "synthetic" and "artificial", used in relation to fibers, mean: synthetic: fibers as defined at (a); artificial: fibers as defined at (b). Strip and the like of heading 5404 or 5405 are not considered to be man-made fibers.
The terms "man-made", "synthetic" and "artificial" shall have the same meanings when used in relation to "textile materials".
Note 1 to Chapter 59, HTSUS, provides as follows:
Except where the context otherwise requires, for the purposes of this chapter the expression "textile fabrics" applies only to the woven fabrics of chapters 50 to 55 and headings 5803 and 5806, the braids and ornamental trimmings in the piece of heading 5808 and the knitted or crocheted fabrics of headings 6002 to 6006.
Note 3 to Chapter 59, HTSUS, provides as follows:
For the purposes of heading 5903, "textile fabrics laminated with plastics" means products made by the assembly of one or more layers of fabrics with one or more sheets or film of plastics which are combined by any process that bonds the layers together, whether or not the sheets or film of plastics are visible to the naked eye in the cross-section.
The Harmonized Commodity Description and Coding System Explanatory Notes
("EN") 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 EN "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 EN to 54.04 provides, in relevant part, as follows:
This heading covers:
1) Synthetic monofilament. These are filaments extruded as single filaments. They are classified here only if they measure 67 decitex or more and do not exceed 1 mm in any cross-sectional dimension. Monofilaments of this heading may be of any cross-sectional configuration and may be obtained not only by extrusion but by lamination or fusion.
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 or from sheets.
The fabric at issue in NY N325833 was properly classified in heading 5903, HTSUS. Heading 5903, HTSUS, provides for "Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902." Note 3 to Chapter 59, HTSUS, defines "textile fabrics laminated with plastics" as "products made by the assembly of one or more layers of fabrics with one or more sheets or film of plastics which are combined by any process that bonds the layers together, whether or not the sheets or film of plastics are visible to the naked eye in the cross-section." The product in NY N325833 was a textile fabric laminated with plastics in accordance with Note 3 to Chapter 59, HTSUS, because it was a textile fabric, composed of polypropylene strips woven together, assembled with a plastic film (composed of polypropylene and polyethylene) and bonded together by pressing and cooling the materials. Note 1 to Chapter 59, HTSUS, states, in relevant part, that the term "'textile fabrics' applies only to the woven fabrics of chapters 50 to 55."[3] In accordance with Note 1 to Chapter 59, HTSUS, the polypropylene strips are considered "textile fabric" because the strips are woven. Moreover, they are classified in Chapter 54, HTSUS, specifically, under heading 5404, HTSUS, which provides, in relevant part, for "strip and the like (for example, artificial straw) of synthetic textile materials of an apparent width not exceeding 5 mm" because the strip measures 2.33 mm in width.
In NY N325833, the fabric was also properly classified at the six-digit level under subheading 5903.90, HTSUS, which provides for "Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902: Other." This basket provision provides for textile fabrics of heading 5903, HTSUS, that are not impregnated, coated, covered or laminated with poly(vinyl chloride) (subheading 5903.10, HTSUS) or with polyurethane (subheading 5903.20, HTSUS). The subject fabric is laminated with polypropylene and polyethylene and, therefore, is properly classified in the basket provision, specifically, subheading 5903.90, HTSUS.
NY N325833 is being revoked because of the classification of the subject fabric at the eight-digit level in subheading 5903.90.25, HTSUSA. The subject merchandise in NY N325833 is not constructed of cotton and therefore is not classifiable in subheading 5903.90.10, HTSUS. The subject merchandise is also not classifiable under the provisions for "Of man-made fibers" (5903.90.15-5903.90.25, HTSUS) because the subject fabric consists of strips of heading 5404, HTSUS, and Note 1 to Chapter 54, HTSUS, which defines the term "man-made fibers" for the entirety of the tariff schedule, states that "[s]trip and the like of heading 5404 or 5405 are not considered to be man-made fibers." Accordingly, the subject fabric cannot be classified as a fabric of man-made fibers in subheading 5903.90.2500, HTSUSA, or in any of the other man-made fiber provisions under subheading 5903.90, HTSUS. The subject merchandise is therefore classified in the basket provision that provides for fabrics of other fibers, specifically, in subheading 5903.90.30, HTSUS, which provides for "Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902: Other: Other."
With regard to NY I80730, it is revoked by operation of law with respect to Samples #1-3 for the aforementioned reasons and additionally, for Sample #3, it is revoked by operation of law because of a change to Note 3 to Chapter 59, HTSUS, that was made in January 2022. Specifically, effective January 27, 2022, Note 3 to Chapter 59, HTSUS, states as follows:
For the purposes of heading 5903, "textile fabrics laminated with plastics" means products made by the assembly of one or more layers of fabrics with one or more sheets or film of plastics which are combined by any process that bonds the layers together, whether or not the sheets or film of plastics are visible to the naked eye in the cross-section.
The introduction of this new language indicates that the sheets or film of plastic are not required to be seen with the naked eye for the product to be considered "textile fabrics laminated with plastics" for purposes of classification in heading 5903, HTSUS. In NY I80730, CBP classified Sample #3 under heading 5407, HTSUS, rather than under heading 5903, HTSUS, because the plastic film was not visible to the naked eye. Under the new Note 3 to Chapter 59, HTSUS, Sample #3 is classified under heading 5903, HTSUS, and specifically in subheading 5903.90.30, HTSUS.
NY L80040 is being modified with respect to Samples "E," "F" and "G." Samples "F" and "G" were originally classified in subheading 5903.90.25, HTSUS, and the reasoning for modifying their classification is consistent with the analysis provided above concerning Note 1 to Chapter 54, HTSUS. Sample "E" was originally classified in subheading 3921.19.00, HTSUS, which provides for "Other plates, sheets, film, foil and strip, of plastics: Cellular: Of other plastics." With respect to Sample "E," NY L80040 indicated that the "resulting material has been visibly coated on one side with what you indicate is a microporous (cellular) polyethylene plastics film." The classification of Sample "E" is modified by operation of law because of the amendment to Note 1 to Chapter 54, HTSUS, as explained above, and also because Note 10 to Chapter 39, HTSUS, indicates in relevant part that the expression "plates, sheets, film, foil and strip" in heading 3921, HTSUS, "applies only to ...film...and strip (other than those of chapter 54)." The strip in Sample "E" is within the scope of the type of strip classified in heading 5404, HTSUS, and is therefore excluded from heading 3921, HTSUS. Sample "E" is instead classified in subheading 5903.90.30, HTSUS.
One comment was received in support of the proposed ruling. The commenter mentioned three rulings issued by CBP wherein the merchandise was classified consistently with the proposed ruling, specifically, NY N300457, dated October 2, 2018, NY N255065, dated August 6, 2014, and NY N253035, dated May 13, 2014. The commenter also identified three additional rulings that they believe to be substantially similar to those at issue in this decision, specifically, NY M82062, dated April 11, 2006, NY L88431, dated October 28, 2005, and NY L83415, dated March 23, 2005. The commenter requested that CBP review and revoke these three rulings. We have reviewed NY M82062, NY L88431, and NY L83415, and they all concern the tariff classification of visibly coated woven textile fabrics of strip of an apparent width not exceeding 5 mm. The products in these three rulings were classified in subheading 5903.90.25, HTSUS. These three rulings were issued prior to 2007 and are therefore revoked by operation of law because they pre-date the amendment to Note 1 to Chapter 54, HTSUS, which effectively precluded "[s]trip and the like of heading 5404 or 5405" from "man-made fibers."
HOLDING:
By application of GRI 1 and 6, the laminated box sleeve woven of polypropylene strip is classified under heading 5903, HTSUS, and specifically, in subheading 5903.90.30, HTSUS, which provides for "Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902: Other: Other." The 2024 column one, general rate of duty is 2.7 percent ad valorem.
Duty rates are provided for convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at https://hts.usitc.gov/.
EFFECT ON OTHER RULINGS:
NY N325833, dated May 25, 2022, NY N250680, dated March 25, 2014, NY N250876, and dated March 25, 2014, are REVOKED.
HQ H310928, dated June 11, 2021, is MODIFIED with respect to the legal analysis applied at the eight-digit level in the tariff classification of four styles of roofing underlayments, specifically, the Roof Pro, ProTec 120, ProTec 160, and ProTec 200. The identified articles are still classified subject to GRI 3(b) and 6.
HQ H305437, dated December 18, 2020, is MODIFIED with respect to the legal analysis applied at the eight-digit level in the tariff classification of four styles of roofing underlayments, specifically, the Pro-20, Gold, Silver and Platinum styles. The identified articles are still classified subject to GRI 3(b) and 6.
NY M82062, dated April 11, 2006, NY L88431, dated October 28, 2005, and NY L83415, dated March 23, 2005, NY I80730, dated May 7, 2002, NY I88153, dated November 25, 2002, NY E86552, dated September 8, 1999, HQ 956946, dated April 6, 1995, HQ 957915, dated July 28, 1995, HQ 957850, dated July 5, 1995, and HQ 958462, dated November 2, 1995, are REVOKED by operation of law.
NY M87513, dated October 24, 2006 (with respect to Sample #1), NY M83066, dated May 5, 2006 (with respect to style EH63-060403), NY L87626, dated September 16, 2005 (with respect to style "Vietnam 7 x 7 CIS"), NY L85660, dated June 15, 2005 (with respect to items "C" and "D"), NY L80040, dated October 28, 2004 (with respect to Samples "E," "F" and "G"), NY A85760, dated August 14, 1996 (with respect to the laminated woven bulk container bag fabric), NY 889417, dated September 1, 1993 (with respect to Sample #2), NY 892226, dated December 1, 1993 (with respect to the first item in the clear material only), and HQ 086130, dated March 1, 1990, (with respect to the item identified as "Sample 2 from the second letter"), are MODIFIED by operation of law.
In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division
-----------------------
[1] With respect to Sample "E", we have provided the additional reasons for modification in the Law and Analysis section below.
[2] NY I80730 concerned Samples #1, 2, and 3 consisted of woven polypropylene textile strips of an apparent width not exceeding 5 mm. Samples #1 and 2 were coated/laminated on one side. Sample #3 was coated/laminated on one side with polypropylene plastic film that was not visible to the naked eye. Samples #1 and 2 were classified in subheading 5903.90.2500, HTSUSA. Sample #3 was classified under heading 5407, HTSUS, and specifically in 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." We have reviewed NY I80730 and find it to be in error regarding the tariff classification all three products. For the reasons set forth in this ruling, NY I80730 is revoked by operation of law.
[3] Note 9 to Section XI, HTSUS, also provides that "[t]he 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."[4] |
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h)?hT8 Note 9 to Section XI, HTSUS, is not pertinent to the subject merchandise in NY N325833.