H314149

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H314149 March 8, 2022 OT:RR:CTF:FTM H314149 MD CATEGORY: Classification TARIFF NO.: 5407.20.00 Center Director Apparel, Footwear & Textiles Center of Excellence and Expertise 1 East Bay Street Savannah, Georgia 31405 Attn: Marchele Wilson, Import Specialist RE: Application for Further Review of Protest No. 1703-20-102155; Tariff Classification of House Wrap Dear Center Director: The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 1703-20-102155, timely filed by Sharretts, Paley, Carter & Blauvelt, P.C., on January 27, 2020, on behalf of their client, Alpha Pro Tech Engineered Products Inc. (“Alpha Pro Tech” or “Protestant”) regarding U.S. Customs and Border Protection (“CBP”) tariff classification of house wrap within subheading 5903.90.2500, Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”). FACTS: The subject merchandise is described as “large rolls of [] plastic coated, woven fabrics consisting of 100 percent polypropylene, to be used as house wrap products” during construction to protect the properties from water infiltration. Specifically, the house wrap “is applied over the wood[en] [frame], but before the siding.” Identified within the AFR are four variants of house wrap; “ZR-HW-09J-PRO-C,” “ZW-HW-10J-PRO-C,” “ZR-HW-09J-PW-001,” and “ZR-HW-HW-10J-PW-001.” Protestant entered three shipments of house wrap in July 2017 at the Port of Charleston, South Carolina under subheading 5903.90.1500, HTSUSA, which provides for “Textile fabrics impregnated, coated, covered or laminated with plastics other than those of heading 5902: With poly(vinyl chloride): Other: Of man-made fibers: Fabrics specified in Note 9 to Section XI: Over 60 percent by weight of plastics.” However, upon review of the subject merchandise, CBP at the Port of Charleston re-classified them under 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.” In support of their re-classification of the house wraps, CBP cited New York Ruling Letter (“NY”) M84411, dated July 11, 2006, which was previously issued to Protestant. This re-classification was also based on the review of the sample by the National Commodity Specialist Division (“NCSD”). As part of their review, NCSD analyzed a sample of the subject merchandise, taking both the construction of the product and its coating into consideration. Noted above, CBP’s initial review of the house wraps found that its coating was clear and did not meet the visibility requirements set forth by Note 2(a)(1) to Chapter 59, HTSUS. As such, the house wrap was re-classified under subheading 5407.20.0000, HTSUSA. However, upon the second review of the sample, NCSD found that the coating was not clear, but rather opaque. As a result, CBP indicated that the correct classification of the house wraps was subheading 5903.90.2500, HTSUSA, which provides for “Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902: Other: Other: Other.” Subsequently, Alpha Pro Tech submitted this protest, asserting that “[t]he plastic coating on the products which are the subject of this protest, like the plastic coating on the fabric, which was the subject of CBP Ruling NY M84411, is not visible to the naked eye except for a change of color.” Protestant notes that “pursuant to Note 2, Chapter 59, HTSUS, the products in question are not coated fabrics within the scope of heading 5903,” as they are precluded from classification within heading 5903, HTSUS, at-large. Instead, Protestant states that the rationale set forth in NY M84411 supports the initial conclusion of CBP upon their review of the subject merchandise in Charleston – classification within subheading 5407.20.0000, HTSUSA. To assist in reviewing this protest, we requested additional samples for our New York Laboratory to review. These samples were furnished in December 2020 and sent in for analysis. We received two reports from CBP’s the New York Laboratory; NY20210163S and NY20210389S, both finalized on April 19, 2021. Whereas NY20210163S analyzed a sample of “ZR-HW-09J-PW-001,” NY20210389S analyzed a sample of “ZR-HW-09J-PRO-C.” Both reports described their respective samples as “a swatch of white, woven fabric” which “was determined to be composed of strips made wholly of polypropylene.” The reports also noted that each respective sample was “coated, covered, impregnated, or laminated with plastic type material (polypropylene) on one side.” On July 27, 2021, CBP held a conference with Protestant and their counsel to discuss the subject merchandise. During this conference, Protestant noted that the initial description of the four variants of house wraps within the initial protest was incorrect. Specifically, Protestant detailed that the subject merchandise was not “coated on one side only with a white matte finish.” Instead, Protestant stated that the house wraps were white in color with an application of clear coating on one side. Moreover, Protestant stated that the house wraps at-issue were identical to those contemplated in NY M84411, dated July 11, 2006. The subject merchandise discussed within NY M84411, a “100% polypropylene woven fabric, was described as “coated with a[n] application of plastic on one side,” which was “not visible to the naked eye,” and was ultimately classified within subheading 5407.20.0000, HTSUSA. CBP requested supplemental information from Protestant to demonstrate that the subject house wrap was identical to the house wrap discussed in NY M84411. On October 13, 2021, Protestant provided CBP with supplemental information in the form of quality system documentation detailing their product lines in both 2007 and 2021. ISSUE: What is the proper tariff classification of the house wraps? 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. (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. 1703-20-102155 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) because the decision against which the protest was filed is alleged to be inconsistent with a decision made at any port with respect to the same or substantially similar merchandise. Specifically, Protestant alleges that the action of the port is inconsistent with NY M84411, dated July 11, 2006, which classified the merchandise in this case under subheading 5407.20.0000, HTSUSA. Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes. 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, GRIs 2 through 6 may then be applied in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to GRIs 1 through 5. The HTSUS provisions under consideration are as follows: 5407 Woven fabrics of synthetic filament 

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. (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. 1703-20-102155 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) because the decision against which the protest was filed is alleged to be inconsistent with a decision made at any port with respect to the same or substantially similar merchandise. Specifically, Protestant alleges that the action of the port is inconsistent with NY M84411, dated July 11, 2006, which classified the merchandise in this case under subheading 5407.20.0000, HTSUSA. Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes. 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, GRIs 2 through 6 may then be applied in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to GRIs 1 through 5.The HTSUS provisions under consideration are as follows:5407 Woven fabrics of synthetic filament yarn, including woven fabrics obtained fr