CLA-2 OT:RR:CTF:TCM H264986 PJG
3920.62.0090
Jane L. Taeger
Samuel Shapiro & Company, Inc.
One Charles Center
100 North Charles Street, Suite 1200
Baltimore, MD 21201
RE: Revocation of NY N262339; tariff classification of plastic sheets from China
Dear Ms. Taeger:
On March 10, 2015, U.S. Customs and Border Protection (“CBP”) issued Samuel Shapiro & Company New York Ruling Letter (“NY”) N262339. The ruling was issued as a correction to a previously issued ruling letter, NY N261080, dated February 20, 2015, which pertained to the tariff classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of five types of plastic sheeting from China that were identified as “CoverFab”, “Safety Pool Fabric”, “DAF Escape”, “Double Sided Tape”, and “Backlit Polyester Film.” We have since reviewed NY N262339 and determined it to be in error with respect to the “CoverFab” and the “Safety Pool Fabric.” Accordingly, NY N262339 is revoked.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. § 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed action was published on August 24, 2016, in Volume 50, Number 34, of the Customs Bulletin. No comments were received in response to this notice.
FACTS:
On February 20, 2015, CBP issued NY N261080, a ruling pertaining to the tariff classification under the HTSUS of five types of plastic sheeting from China. They were identified as “CoverFab”, “Safety Pool Fabric”, “DAF Escape”, “Double Sided Tape”, and “Backlit Polyester Film.”
In NY N261080, the “CoverFab” was described as follows:
The … CoverFab, is constructed of cellular polyvinyl chloride (PVC) reinforced with polyester textile. You indicate that the product is 75 percent PVC and 25 percent polyester by weight. The product is used for shower and privacy curtains and is treated with an anti-bacterial agent. The sheet has a plastic coating on both sides of the product that can be easily seen with the naked eye. You do not indicate the size in which the product will be imported, but the sample appears to be a sheet of rectangular shape.
In NY N261080, the “Safety Pool Fabric” was described as follows:
The product is constructed of black interwoven strips of plastic measuring less than 5 mm in width; this constitutes a textile. The textile has been coated on both sides with a colored plastic material that can be seen with the naked eye. You indicate that the product is imported in rolls with a length of 300 yards and a width of 73 inches, and has a weight of 237 grams per square meter.
NY N261080 also indicated that each of these products “has a continuous surface and is imported in rectangular shapes.” We further note that the “Safety Pool Fabric” is constructed of non-cellular, high density polyethylene (“HDPE”).
In NY N261080, CBP classified the “CoverFab” under subheading 3921.12.1100, HTSUSA, which provides for “Other plates, sheets, film, foil and strip, of plastics: Cellular: 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: Over 70 percent by weight of plastics,” and classified the “Safety Pool Fabric” under subheading 3921.90.1100, HTSUSA, which provides for “Other plates, sheets, film, foil and strip, of plastics: Other: Combined with textile materials and weighing not more than 1.492 kg/m2: Products with textile components in which man-made fibers predominate by weight over any other single textile fiber: Over 70 percent by weight of plastics.”
After issuing NY N261080, CBP determined that the tariff classification of the “CoverFab” and the “Safety Pool Fabric” was impacted by the U.S. Court of International Trade’s decision in Semperit Industrial Products v. United States, 18 Ct. Int’l Trade 578, 586 (1994), in which the court determined that the term “predominate” in subheading 4010.91.15, HTSUS, which provides for “Conveyor or transmission belts or belting, of vulcanized rubber: Other: Of a width exceeding 20 cm: Combined with textile materials: With textile components in which man-made fibers predominate by weight over any other single textile fiber”, means two or more elements need to be the subject of comparison. As a result, CBP concluded that a product comprised of only polyester cannot be classified under subheading 3921.12.1100, HTSUSA. Therefore, CBP issued NY N262339, dated March 10, 2015, to correct the tariff classification for the “CoverFab” by classifying it under subheading 3921.12.1950, 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.” CBP also corrected the tariff classification of the “Safety Pool Fabric” by classifying it under subheading 3921.90.1950, HTSUSA, which provides for “Other plates, sheets, film, foil and strip, of plastics: Other: Combined with textile material sand weighing not more than 1.492 kg/m2: Other: Other.”
ISSUES:
What is the proper classification of the “CoverFab” and “Safety Pool Fabric” products under the HTSUS?
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States (“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 may then 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
3921.90 Other:
Combined with textile materials and weighing not more than 1.492 kg/m2:
Products with textile components in which man-made fibers predominate by weight over any other single textile fiber:
3921.90.1100 Over 70 percent by weight of plastics
* * *
3921.90.19 Other
* * *
3921.90.1950 Other
Note 10 to Chapter 39, HTSUS, provides as follows:
10. In heading 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).
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System 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 (August 23, 1989).
The EN to Chapter 39, HTSUS, provides, in pertinent part, the following:
The following products are also covered by this Chapter:
* * *
(b) Textile fabrics and nonwovens, either completely embedded in plastics or entirely coated or covered on both sides with such material, provided that such coating or covering can be seen with the naked eye with no account being taken of any resulting change in color.
* * *
The EN to 39.21 states, in pertinent part, as follows:
This heading covers . . . only cellular products or those which have been reinforced, laminated, supported or similarly combined with other materials.
According to Note 10 to this Chapter, the expression “plates, sheets, film, foil and strip” applies only to plates, sheets, film, foil and strip and to blocks of regular geometric shape, whether or not printed or otherwise surface-worked (for example, polished, embossed, coloured, merely curved or corrugated), uncut or cut into rectangles (including squares) but not further worked (even if when so cut they become articles ready for use).
Plates, sheets, etc., whether or not surface-worked (including squares and other rectangles cut therefrom), with ground edges, drilled, milled, hemmed, twisted, framed or otherwise worked or cut into shapes other than rectangular (including square) are generally classified as articles of headings 39.18, 39.19 or 39.22 to 39.26.
This relates to the classification of the “CoverFab” and “Safety Pool Fabric” products in heading 3921, HTSUS, at the eight digit level. In Value Vinyls, Inc. v. United States, 568 F.3d 1374, 1380 (Fed. Cir. 2009), the United States Court of Appeals for the Federal Circuit affirmed the finding of the Court of International Trade in Value Vinyls, Inc. v. United States, 31 Ct. Int’l Trade 1209 (2007), which held that “the definition and application of ‘predominate’” in Semperit Industrial Products does not apply to the goods of Chapter 39, HTSUS. Specifically, the United States Court of Appeals for the Federal Circuit found as follows:
The Court of International Trade did not err in holding that the definition and application of "predominate" in Semperit does not apply to these different goods and different HTSUS section. The complexity of the tariff schedule, the great variety of products in trade, and the constant barrage of new products, all support the obligation of the Court of International Trade to reach the "correct result" in the case at hand. Jarvis Clark Co., 733 F.2d at 878. We conclude that the court correctly ruled that subheading 3921.90.11 embraces products whose textile component is made wholly of man-made fibers, and therefore applies to Value Vinyls' goods.
Value Vinyls, Inc., 568 F.3d at 1380.
We note that in Value Vinyls, Inc., 568 F.3d 1374 (Fed. Cir. 2009), the tariff language “Products with textile components in which man-made fibers predominate by weight over any other single textile fiber” for goods of Chapter 39, HTSUS, was at issue. Therefore, we believe that Value Vinyls, Inc. controls for purposes of classification in heading 3921, HTSUS, and specifically, in subheadings 3921.12.1100, HTSUSA, and 3921.90.1100, HTSUSA. The court held that the term “predominate,” as it relates to goods of Chapter 39, HTSUS, applies to circumstances wherein a single man-made fiber predominates by weight over any other single textile fiber. See Value Vinyls, Inc., 568 F.3d at 1380. We find that both of the articles subject to this ruling are constructed predominately of man-made fibers. Specifically, the “CoverFab” is constructed of 75 percent cellular PVC and 25 percent polyester by weight, and the “Safety Pool Fabric” is constructed entirely of non-cellular HDPE.
In light of the court’s decision in Value Vinyls, Inc. and the material construction of the subject merchandise, we find that the “CoverFab” is appropriately classified in subheading 3921.12.1100, HTSUSA, which provides for “Other plates, sheets, film, foil and strip, of plastics: Cellular: 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: Over 70 percent by weight of plastics.”
Similarly, in light of the court’s decision in Value Vinyls, Inc., the material construction, and the weight of the subject merchandise, which is .237 kg/m2, we find that the “Safety Pool Fabric” is appropriately classified in subheading 3921.90.1100, HTSUSA, which provides for “Other plates, sheets, film, foil and strip, of plastics: Other: Combined with textile materials and weighing not more than 1.492 kg/m2: Products with textile components in which man-made fibers predominate by weight over any other single textile fiber: Over 70 percent by weight of plastics.”
Our conclusion is consistent with HQ H260252, dated January 22, 2016, wherein this office classified a conveyor belt comprised of textile covered with a non-cellular polyurethane coating and imported in rectangular rolls in subheading 3921.90.25, HTSUS, which provides for “Other plates, sheets, film, foil and strip, of plastics: Other: Combined with textile materials and weighing more than 1,492 kg/m²: Products with textile components in which man-made fibers predominate by weight over any other single textile fiber.”
HOLDING:
Under the authority of GRIs 1 and 6 the “CoverFab” product is classified in heading 3921, HTSUS, specifically in subheading 3921.12.1100, HTSUSA, which provides for “Other plates, sheets, film, foil and strip, of plastics: Cellular: 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: Over 70 percent by weight of plastics,” and the “Safety Pool Fabric” product is classified in heading 3921, HTSUS, specifically in subheading 3921.90.1100, HTSUSA, which provides for “Other plates, sheets, film, foil and strip, of plastics: Other: Combined with textile materials and weighing not more than 1.492 kg/m2: Products with textile components in which man-made fibers predominate by weight over any other single textile fiber: Over 70 percent by weight of plastics.” The 2016 column one, general rate of duty for each of these tariff classifications is 4.2 percent ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY N262339, dated March 10, 2015, is REVOKED.
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division