H305867

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H305867 October 22, 2020 OT:RR:CTF:FTM H305867 MJD CATEGORY: Classification TARIFF NO.: 3921.12.15 Center Director Apparel, Footwear, and Textiles CEE U.S Customs and Border Protection 6747 Engle Road Middleburg Heights, OH 44130 Attn: Christopher Jeresko, Import Specialist Re: Application for Further Review of Protest No. 2704-19-104647; Classification of Lazer Material from China Dear Center Director: The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 2704-19-104647, timely filed by Zisser Customs Law Group, PC, on September 24, 2019, on behalf of their client, Barbaras Development, Inc. (“Barbaras” or “Protestant”), concerning the tariff classification of lazer material from China under the Harmonized Tariff Schedule of the United States (“HTSUS”). FACTS: The merchandise under protest concerns the classification of a material the Protestant calls “Lazer Fabric.” The material is of a plain weave construction on one side, coated with plastic on the other side, and uniformly dyed. Protestant claims that the lazer material is “66% by weight plastic and 34% polyester textile fabric.” The lazer material is used for many applications, including, but not limited to, bags, tents, boat covers, grill covers, awnings, etc. The side of the material i.e., the coated plastic side or the textile side, that faces the inside or outside of the finished item depends on the application of the material and the preference of the manufacturer. The following is the manufacturing process of the lazer material according to the Protestant: Polyester yarns are loosely woven together in a greige fabric condition. In this condition the weave is very loose and easily penetrated with virtually any solid object. The yarns are easily shifted and the fabric has little strength and provides limited resistance to manipulation of yarns in the weave pattern. The greige fabric is dyed. The dyed fabric is coated with a water based adhesive. In this condition the yarns are now bonded at their intersections and the yarns are no longer able to shift and move. With the adhesive material the woven fibers are stabilized and the fabric has excellent resistance to manipulation. The coated fabric is laminated with a [polyvinyl chloride] backing material. This represents the finished Lazer Fabric in its condition as imported into the United States from China. Unlike the application of the adhesive material, the lamination does not impact the strength and stability of the individual yarns. The U.S. Customs and Border Protection (“CBP”) Chicago laboratory tested two samples of the lazer material, one blue and the other black. CBP laboratory report no. CH20190199, dated March 5, 2019, stated the blue fabric sample is “66% by weight rubber/plastics and 34% textile.” CBP laboratory report no. CH20190200, dated March 7, 2019, stated the black fabric is “69% by weight rubber/plastics and 31% textile.” Both laboratory reports provided that the samples are “coated on one side with polyvinyl chloride, a rubber/plastic material, and calcium carbonate, a filler. The fibers are man-made, polyester.” Furthermore, both laboratory reports opined that the lazer material did not “meet the specification in Note 9 of Section XI.” The samples of the lazer material were also tested by the CBP New York laboratory. The blue sample via laboratory report no. NY20200074, dated February 19, 2020, and the black sample via laboratory report no. NY20200073, dated March 9, 2020, were both found to be “composed of a woven fabric coated, covered, or laminated with a cellular plastic material.” The lazer material was entered under subheading 5903.10.1500, HTSUSA (“Annotated”), which provides for “[t]extile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902: With poly(vinyl chloride): Of man-made fibers: Fabrics specified in note 9 to section XI: Over 60 percent by weight of plastics” which has a free rate of duty. CBP reclassified the lazer material under subheading 5903.10.2500, HTSUSA, which provides for “[t]extile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902: With poly(vinyl chloride): Of man-made fibers: Other: Other” which has a duty rate of 7.5% ad valorem. ISSUE: What is the tariff classification of the lazer material? 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 of the first entry. (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. 2704-19-104647 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 and fact which have not been ruled upon by the Commissioner of CBP or his designee or by the Customs courts. 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 GRIs 2 through 6 may then be applied in order. The 2018 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: 3921.12.1500: 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: Fabrics specified in note 9 to section XI: 5903.10.1500: Over 60 percent by weight of plastics… Other: 5903.10.2500: 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 9 to Section XI, HTSUS, which includes Chapter 59, states the following: The 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. Note 2 to Chapter 59, HTSUS, provides, in pertinent part, that heading 5903 applies to: (a) 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 understanding the language of the HTSUS, the Explanatory Notes (“ENs”) of the Harmonized Commodity Des

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 of the first entry. (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. 2704-19-104647 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 and fact which have not been ruled upon by the Commissioner of CBP or his designee or by the Customs courts. 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 GRIs 2 through 6 may then be applied in order. The 2018 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:3921.12.1500: 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: Fabrics specified in note 9 to section XI:5903.10.1500: Over 60 percent by weight of plastics… Other: 5903.10.2500: 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 “pl