H305437

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H305437 December 18, 2020 OT:RR:CTF:FTM H305437 JER CATEGORY: Classification TARIFF NO.: 5603, 5903, 5907 Center Director CEE-Apparel, Footwear & Textiles U.S. Customs and Border Protection San Francisco, CA ATTN: Kristen F. Tessenear, Supervisory Import Specialist RE: Application for Further Review of Protest No. 3004-19-100105; Classification of Roofing Underlayments Dear Center Director: This is in reference to the Application for Further Review (“AFR”) of Protest No. 3004-19-100105 (“Protest”), dated June 3, 2019, filed by the law firm of Cassidy Levy Kent, LLP, on behalf of FT Synthetics Inc. (“FT Synthetics” or “Protestant”), contesting U.S. Customs and Border Protection’s (“CBP”) tariff classification of roofing underlayments under the Harmonized Tariff Schedule of the United States (“HTSUS”). The Protest requests review of six 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. The instant AFR concerns fifty-five entries made between January 3, 2018 and May 17, 2018 at the Port of San Francisco. Our decision is set forth below. FACTS: There are six products covered in this AFR: Gold, Hydra, Platinum, Platinum HT-SA, Pro-20, and Silver. Protestant divides these six products into two groups. The first group of roof underlayments are mechanically fastened products, which are fastened to roofs with hammer, nails and staples. The five types of mechanically fastened products are Gold, Silver, Platinum, Pro-20, and Hydra. The Pro-20, Gold, Silver and Platinum underlayments are of nearly identical construction and material. The visual layer of coating on the Pro-20, Gold, Silver, and Platinum is composed of polyolefin. The lamination layers on all products are composed of polyolefin. The Platinum HT-SA is similar to the above four products, however, it also contains additional layers laminated to the woven scrim, specifically, a layer of bitumen (adhesive) and a layer of release “paper” (or release liner), which serves merely as packaging to protect the qualities of the bitumen layer prior to adherence to the construction materials. The Hydra contains a nonwoven “nonslip” layer, laminated to a similar nonwoven layer. The Hydra does not contain a layer of coated woven scrim like that of all other five products. Protestant submits that all of the mechanically fastened products, except Hydra, are comprised of the following four layers: Layer Materials Weight g/m2 (% of total)  1 top spun bond nonwoven fabric 35-65 g/m2 33% -38%  2 middle (polyolefin) lamination layer 17-33 g/m2 16% -20%  3 woven textile (scrim) made of 3 mm strips of polypropylene 35-50 g/m2 29%-33%  4 back/bottom (polyolefin) coating layer 18-22 g/m2 13%-17%   Total Weight: 105-170 g/m2   Protestant submits that Hydra is comprised of the following three layers: Layer Materials Weight g/m2 (% of total)  1 top spun bond nonwoven fabric 365 g/m2 37%  2 middle (polyolefin) lamination layer 23 g/m2 13%  3 back/bottom spun bond nonwoven fabric 90 g/m2 51%   Total Weight: 478 g/m2   The second group of roofing underlayments are peel-and-stick products, which contain their own adhesive material for fastening to roofs and therefore hammers, nails and staples are unnecessary. There is only one type of peel-and-stick product at issue, Platinum HT-SA, which is comprised of the following six layers: Layer Materials Weight g/m2 (% of total)  1 top spun bond nonwoven fabric 65 g/m2 7%  2 first (polyolefin) lamination layer 25 g/m2 2%  3 woven textile made of 3 mm strips of polypropylene 35 g/m2 4%  4 second (polyolefin) lamination layer 35 g/m2 4%  5 SBS (styrene-butadiene-styrene) modified bitumen blend 720 g/m2 76%  6 Release liner (polyethylene) film 35 g/m2 4%   Total Weight: 915 g/m2   At the time of entry, FT Synthetics classified the instant roofing underlayments in subheadings 5603.13.00, 5603.14.90, and 6807.10.00, HTSUS. CBP conducted a verification of a preferential tariff treatment claim under the North American Free Trade Agreement (“NAFTA”) for one of the entries, which is not at issue here. During that verification, FT Synthetics notified CBP that the correct classification for that entry should have been subheading 6807.10.00, HTSUS, instead of subheading 5603.13.00, HTSUS. CBP issued a Notice of Action advising FT Synthetics of its decision to change the classification of the merchandise examined during verification from subheading 5603.13.00, HTSUS, to subheading 5602.90.60, HTSUS. CBP then liquidated the entries covered by Protest. CBP classified and liquidated all of the six products under heading 5602, HTSUS, and specifically, in subheading 5602.90.6000, Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”), which provides for “Felt, whether or not impregnated, coated, covered or laminated: Other: Other: Of man-made fibers.” The duty rate applicable to this subheading is 6.3% ad valorem. However, we note that CBP classified the subject merchandise under heading 5602, HTSUS, as “felt” based on the description of the merchandise as provided in the commercial invoices and entry documents. CBP did not have a sample of the merchandise and relied solely on the description provided by Protestant in the commercial invoices. The commercial invoices described each of the six types of roofing underlayments as felt. On October 7, 2020, CBP held a telephone conference with Protestant’s counsel, the law firm of Cassidy Levy Kent, LLP, to discuss the tariff classification of the products in question. On October 15, 2020, counsel for Protestant provided a supplemental submission, explaining why the essential character of its Pro-20, Gold, Silver, and Platinum roofing underlayments is imparted by their nonwoven weather-protection and anti-slip top layer material and identifying previously published CBP ruling letter that allegedly classifies substantially similar nonwoven laminated roofing underlayments under heading 5603, HTSUS, as laminated nonwovens. ISSUE: What is the tariff classification of the Gold, Platinum, Silver, Pro-20, Platinum HT-SA, and Hydra roofing underlayment products? LAW AND ANALYSIS: We first 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 entry. See 19 U.S.C. § 1514(c)(3). 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 in order. Pursuant to GRI 6, classification at the subheading level uses the same rules, mutatis mutandis, as classification at the heading level. The 2018 HTSUSA headings under consideration are the following: 5602: Felt, whether or not impregnated, coated, covered or laminated: * * * 5602.90 Other: * * * Other: 5602.90.6000 Of man-made fibers * * * * * 5603: Nonwovens, whether or not impregnated, coated, covered or laminated: Of man-made filaments: * * * 5603.13.00 Weighing more than 70 g/m2 but not more than 150 g/m2 5603.13.0090 Other 5603.14 Weighing more than 150 g/m2 5603.14.3000 Laminated fabrics * * * Other: 5603.94 Weighing more than 150 g/m2 * * * Other: 5603.94.3000 Laminated fabrics * * * * * 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 * * * * * 590

We first 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 entry. See 19 U.S.C. § 1514(c)(3). 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 in order. Pursuant to GRI 6, classification at the subheading level uses the same rules, mutatis mutandis, as classification at the heading level. The 2018 HTSUSA headings under consideration are the following: 5602: Felt, whether or not impregnated, coated, covered or laminated:* * *5602.90 Other:* * * Other: 5602.90.6000 Of man-made fibers* * * * *5603: Nonwovens, whether or not impregnated, coated, covered orlaminated: Of man-made filaments:* * *5603.13.00 Weighing more than 70 g/m2 but not more than 150 g/m25603.13.0090 Other5603.14 Weighing more than 150 g/m25603.14.3000 Laminated fabrics* * * Other:5603.94 Weighing more than 150 g/m2 * * * Other:5603.94.3000 Laminated fabrics* * * * *5903 Textile fabrics impregnated, coated, covered or laminated withplastics, other than those of heading 5902* * * 5903.90 Other: Of man-made fibers: Other:5903.90.2500 Other* * * * *5907.00 Textile fabrics otherwise impregnated, coated or covered; painted canvas being theatrical scenery, studio back-cloths or the like:* * * Other:* * *5907.00.6000 Of man-made fibers* * * * *Protestant asserts that the five mechanically fastening roofing underlayments are properly classified in heading 5603, HTSUS. Specifically, Protestant contends that, depending on the weight, these five underlayments are classified in either subheading 5603.13