H310928

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H310928 June 11, 2021 OT:RR:CTF:FTM H310928 MJD CATEGORY: Classification TARIFF NO.: 5903.90.25 Center Director Pharmaceutical, Health and Chemical Center 1100 Raymond Blvd 4th Floor Newark, NJ 07102 Attn: Lisa Olsen, Supervisory Import Specialist; Angela Hultz, Supervisory Import Specialist; and Stephen Bono, Import Specialist Re: Application for Further Review of Protest No. 3004-20-100247; Classification of Roofing Underlayments Dear Center Director: This is in reference to the Application for Further Review (“AFR”) of Protest No. 3004-20-100247 (“Protest”), timely filed by Crowell & Moring LLP, on February 5, 2020, on behalf of their client, DuPont Specialty Products USA, LLC., (hereinafter “Protestant” or “DuPont”), contesting U.S Customs and Border Protection’s (“CBP”) tariff classification of several roofing underlayments under the Harmonized Tariff Schedule of the United States (“HTSUS”). This Protest pertains to four 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 and grip to the shingles to keep them from sliding. The instant AFR concerns ten entries made between February 13, 2019 and March 29, 2019, and liquidated on August 23, 2019 at the Port of Blaine, Washington. Protestant requested, and CBP granted, a teleconference that was held on May 14, 2021. Our decision is set forth below. Protestant has asked that certain information submitted in connection with this Protest be treated as confidential, pursuant to 19 C.F.R. § 177.2(b)(7). The request for confidentiality is approved. Information regarding the weight of each layer in the roofing underlayments, will not be released to the public and will be withheld from published versions of this decision. FACTS: At issue in this AFR are four multi-layered roofing underlayments products: (1) Roof Pro, (2) ProTec 120, (3) ProTec 160, and (4) ProTec 200. Protestant provides that the Roof Pro and ProTec product lines have the same four layers of construction, which serve the same function, but the weight of the layers varies depending on the type of product. The top and third layers of each roofing underlayment are 25% or more of the overall weight of each product, and the second and bottom layers of each roofing underlayment are less than 25% of the overall weight of each product. The following is a description of each layer of the Roof Pro and ProTec products, according to Protestant: The top layer is a nonwoven fabric, comprised of nonwoven polypropylene, an ultraviolet light (“UV”) protection additive, and a pigment. The function of this layer is to provide grip to a person walking on the roof surface while shingling the roof, and to provide grip to the shingles to keep them from sliding. These are easily the most important functions of the underlayment. They provide for safety of the roofer, to keep them from falling off the roof and harming themselves; and they provide grip to the shingles to hold them in place and prevent water intrusion into the structure. The second layer is a bonding layer, comprised of polypropylene, low density polyethylene (“LDPE”), a UV additive, and pigment. The function is to bond the top and third layers together, and to provide a water barrier. The third layer is a woven scrim layer, comprised of woven polypropylene, calcium carbonate, and a UV additive. The function of the scrim layer is to provide mechanical strength and dimensional stability to the product. The fourth layer is a grip coating, comprised of polypropylene, LDPE, a thermoplastic elastomer, and a pigment. This layer provides grip from the underlayment to the roof surface. At the time of entry, DuPont classified the Roof Pro and ProTec roofing underlayments under subheading 5603.13.0090, HTSUSA (“Annotated”), which provides for “[n]onwovens, whether or not impregnated, coated, covered or laminated: Of man-made filaments: Weighing more than 70 g/m^2 but not more than 150 g/m^2: Other.” On April 9, 2019, CBP sent DuPont a Request for Information (CBP Form 28) concerning the Roof Pro 42/1067 L286/87 P49 (“Roof Pro”) product. The CBP laboratory tested a sample of the Roof Pro underlayment via laboratory report no. SF20190542, dated June 26, 2019, and found that the sample is a “multi-layered fabric . . . coated with plastic on one side . . . [and] composed wholly of polypropylene textile and plastic.” The lab report also stated that the fabric has three layers by weight consisting of [**]% polypropylene nonwoven, not felt, textile fabric; [**]% polypropylene woven synthetic textile strip; and [**]% polypropylene plastic coating. Moreover, the laboratory report stated that most of the Roof Pro sample is composed of “two polypropylene textile fabric. . . [and] less than 70% plastic.” The Roof Pro and ProTec products were then reclassified under subheading 5903.90.3090, HTSUSA, which provides for “[t]extile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902: Other: Other: Other.” Subsequently, the CBP laboratory tested samples of the ProTec 120, ProTec 160, and ProTec 200 and found that like the Roof Pro product, the underlayments were “multi-layered fabric . . . coated with plastic on one side . . . [and] composed wholly of polypropylene textile and plastic.” Similarly, like the Roof Pro product, the ProTec products have three layers, and most of the roofing underlayments are comprised of “two polypropylene textile fabric layers . . . [and] less than 70% plastic.” Specifically, laboratory report no. SF20200225, dated March 23, 2020, reported that the ProTec 120 is composed of [**]% polypropylene nonwoven, not felt textile fabric; [**]% polypropylene woven synthetic textile strips; and [**]% polypropylene plastic coating by weight. Laboratory report no. SF20200226, dated March 23, 2020, reported that the ProTec 160 is composed of [**]% polypropylene nonwoven, not felt, textile fabric; [**]% polypropylene woven synthetic textile strips; and [**]% polypropylene plastic coating by weight. Laboratory report no. SF20200227, dated March 23, 2020, stated that the ProTec 200 is composed of [**]% polypropylene nonwoven, not felt, textile fabric; [**]% polypropylene woven textile strips; and [**]% polypropylene plastic coating by weight. ISSUE: What is the tariff classification of the Roof Pro and ProTec roofing underlayments at issue? LAW AND ANALYSIS: Initially, we 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 entries. (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. 3004-20-100247 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 or fact which have not been ruled upon by the Commissioner of CBP or his designee or by the Customs courts. The 2019 HTSUS provisions under consideration are as follows: 5603 Nonwovens, whether or not impregnated, coated, covered or laminated: * * * * * 5903 Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902: * * * * * GRI 3(a) and (b) provide as follows: When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows: The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or put substances containe

Initially, we 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 entries. (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. 3004-20-100247 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 or fact which have not been ruled upon by the Commissioner of CBP or his designee or by the Customs courts. The 2019 HTSUS provisions under consideration are as follows:5603 Nonwovens, whether or not impregnated, coated, covered or laminated: * * * * *5903 Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902: * * * * *GRI 3(a) and (b) provide as follows:When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows: The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or put substances contained in mixed or composite goods or to part only of the items in a set up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.* * * * * In addition, in inter