H296508

 HQ H296508 September 4, 2020 OT:RR:CTF:FTM H296508 TJS CATEGORY: Classification TARIFF NO.: 3921.12.11 Port Director U.S. Customs and Border Protection 2810 B West Fort Street Suite #123 Detroit, MI 48216 Attn: Leticia Lopez, Supervisory Import Specialist Re: Application for Further Review of Protest No. 3801-17-100738; Classification of Polyester Fabric Covered with Polyvinyl Chloride Dear Port Director: This is in reference to the Application for Further Review (“AFR”) of Protest No. 3801-17-100738, timely filed on July 5, 2017, by Sandler & Travis Trade Advisory Services (“Protestant”), on behalf of Yanfeng U.S. Automotive Interior Systems I (“Yanfeng”), concerning U.S. Customs and Border Protection’s (“CBP”) tariff classification of two types of polyester fabric covered in plastic under the Harmonized Tariff Schedule of the United States (“HTSUS”). FACTS: The merchandise at issue is two types of material, referenced as Yanfeng Part Nos. 3094490-DJ9 and 3094490-ZHE, which are used as upholstery in automobiles. In addition to the protest, Protestant provided samples and a product diagram that describes the material as consisting of four layers: a top layer of “PVC, TPO, etc.” with approximate thickness 0.3mm to 0.4mm; a second layer of “EXPANDED PVC etc.” with approximate thickness .5mm; a third layer of “ADHESIVE OR HEAT”; and the fourth layer of “KNIT, WOVEN, PET, COTTON, etc.” The top plastic layer is embossed to simulate leather. This AFR covers three entries made between July 14, 2016 and August 11, 2016 and liquidated between May 26, 2017 and June 23, 2017. The entries were liquidated as entered under subheading 3921.12.1950, Harmonized Schedule of the United States Annotated (“HTSUSA”), which provides for “Other plates, sheets, film, foil and strip, of plastics: Cellular: Of polymers of vinyl chloride: Combined with textile materials: Other: Other.” The protest was timely filed on July 5, 2017. Protestant claims that Yanfeng Part Nos. 3094490-DJ9 and 3094490-ZHE should be classified under subheading 5903.10.2090, HTSUSA, which provides for “Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902: With poly(vinyl chloride): Of man-made fibers: Other: Over 70 percent by weight of rubber or plastics: Other.” Protestant relies upon CBP’s decision in New York Ruling Letter (“NY”) M87797, dated November 16, 2006, to support classification in heading 5903, HTSUS. On August 30, 2017, CBP denied the protest with respect to the tariff classification of Yanfeng Part Nos. 3094490-DJ9 and 3094490-ZHE. On December 3, 2019, the samples were sent to CBP Laboratories and Scientific Services (“CBP Laboratory”), which determined that both samples are composed of a weft knit fabric impregnated, coated, covered or laminated with a poly (vinyl chlorite) type cellular plastic material. CBP Lab report NY20191813, dated December 30, 2019, determined that the grey sample consists of 82.9% by weight of plastic material and 17.1% by weight of textile fabric, which is composed of 72.8% by weight of polyester and 27.2% by weight of cotton. CBP Lab report NY20191814, dated December 30, 2019, determined that the black sample consists of 82.8% by weight of plastic material and 17.2% by weight of textile fabric, which is composed of 73.8% by weight of polyester and 26.2% by weight of cotton. ISSUE: What is the tariff classification of Yanfeng Part Nos. 3094490-DJ9 and 3094490-ZHE? LAW AND ANALYSIS: Initially, we note that this matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. Further review of Protest No. 3801-17-100738, timely filed on July 5, 2017, is accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) because Protestant alleges that CBP’s classification decision is inconsistent with NY M87797. 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 be applied. The 2016 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: 3921.12.1100: Over 70 percent by weight of plastics… 3921.12.19: Other: 3921.12.1950: 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: Other: 5903.10.20 Over 70 percent by weight of rubber or plastics: 5903.10.2090: 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 2 to Chapter 59, HTSUS, provides in pertinent part: 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: … (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 addition, the Explanatory Notes (“EN”) 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 (Aug. 23, 1989). The General EN to Chapter 39 provide the following, in pertinent part: Cellular plastics Cellular plastics are plastics having many cells (either open, closed or both), dispersed throughout their mass. They include foam plastics, expanded plastics and microporous or microcellular plastics. They may be either flexible or rigid. Cellular plastics are produced by a variety of methods. These include incorporating a gas into plastics (e.g., by mechanical mixing, evaporation of a low boiling point solvent, degradation of a gas producing material), mixing plastics with hollow micro-spheres (e.g., of glass or phenolic resin), sintering granules of plastics and mixing plastics with water or solvent-soluble material which are leached out of plastics leaving voids. 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 rei

Initially, we note that this matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. Further review of Protest No. 3801-17-100738, timely filed on July 5, 2017, is accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) because Protestant alleges that CBP’s classification decision is inconsistent with NY M87797. 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 be applied.The 2016 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:3921.12.1100: Over 70 percent by weight of plastics…3921.12.19: Other:3921.12.1950: 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: Other:5903.10.20 Over 70 percent by weight of rubber or plastics:5903.10.2090: 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