OT:RR:CTF:FTM H296508 TJS
Port Director
U.S. Customs and Border Protection
2810 B West Fort Street Suite #123
Detroit, MI 48216
Attn: Leticia Lopez, Supervisory Import Specialist
Re: Application for Further Review of Protest No. 3801-17-100738; Classification of Polyester Fabric Covered with Polyvinyl Chloride
Dear Port Director:
This is in reference to the Application for Further Review (“AFR”) of Protest No. 3801-17-100738, timely filed on July 5, 2017, by Sandler & Travis Trade Advisory Services (“Protestant”), on behalf of Yanfeng U.S. Automotive Interior Systems I (“Yanfeng”), concerning U.S. Customs and Border Protection’s (“CBP”) tariff classification of two types of polyester fabric covered in plastic under the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
The merchandise at issue is two types of material, referenced as Yanfeng Part Nos. 3094490-DJ9 and 3094490-ZHE, which are used as upholstery in automobiles. In addition to the protest, Protestant provided samples and a product diagram that describes the material as consisting of four layers: a top layer of “PVC, TPO, etc.” with approximate thickness 0.3mm to 0.4mm; a second layer of “EXPANDED PVC etc.” with approximate thickness .5mm; a third layer of “ADHESIVE OR HEAT”; and the fourth layer of “KNIT, WOVEN, PET, COTTON, etc.” The top plastic layer is embossed to simulate leather.
This AFR covers three entries made between July 14, 2016 and August 11, 2016 and liquidated between May 26, 2017 and June 23, 2017. The entries were liquidated as entered under subheading 3921.12.1950, Harmonized Schedule of the United States Annotated (“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.” The protest was timely filed on July 5, 2017. Protestant claims that Yanfeng Part Nos. 3094490-DJ9 and 3094490-ZHE should be classified under subheading 5903.10.2090, HTSUSA, which provides for “Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902: With poly(vinyl chloride): Of man-made fibers: Other: Over 70 percent by weight of rubber or plastics: Other.” Protestant relies upon CBP’s decision in New York Ruling Letter (“NY”) M87797, dated November 16, 2006, to support classification in heading 5903, HTSUS. On August 30, 2017, CBP denied the protest with respect to the tariff classification of Yanfeng Part Nos. 3094490-DJ9 and 3094490-ZHE.
On December 3, 2019, the samples were sent to CBP Laboratories and Scientific Services (“CBP Laboratory”), which determined that both samples are composed of a weft knit fabric impregnated, coated, covered or laminated with a poly (vinyl chlorite) type cellular plastic material. CBP Lab report NY20191813, dated December 30, 2019, determined that the grey sample consists of 82.9% by weight of plastic material and 17.1% by weight of textile fabric, which is composed of 72.8% by weight of polyester and 27.2% by weight of cotton. CBP Lab report NY20191814, dated December 30, 2019, determined that the black sample consists of 82.8% by weight of plastic material and 17.2% by weight of textile fabric, which is composed of 73.8% by weight of polyester and 26.2% by weight of cotton.
ISSUE:
What is the tariff classification of Yanfeng Part Nos. 3094490-DJ9 and 3094490-ZHE?
LAW AND ANALYSIS:
Initially, we note that this matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. Further review of Protest No. 3801-17-100738, timely filed on July 5, 2017, is accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) because Protestant alleges that CBP’s classification decision is inconsistent with NY M87797.
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 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…
* * * * *
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:
Other:
5903.10.20 Over 70 percent by weight of rubber or plastics:
5903.10.2090: 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 2 to Chapter 59, HTSUS, provides in pertinent part:
Heading 5903 applies to:
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 addition, the Explanatory Notes (“EN”) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff 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 (Aug. 23, 1989).
The General EN to Chapter 39 provide the following, in pertinent part:
Cellular plastics
Cellular plastics are plastics having many cells (either open, closed or both), dispersed throughout their mass. They include foam plastics, expanded plastics and microporous or microcellular plastics. They may be either flexible or rigid.
Cellular plastics are produced by a variety of methods. These include incorporating a gas into plastics (e.g., by mechanical mixing, evaporation of a low boiling point solvent, degradation of a gas producing material), mixing plastics with hollow micro-spheres (e.g., of glass or phenolic resin), sintering granules of plastics and mixing plastics with water or solvent-soluble material which are leached out of plastics leaving voids.
Plastics and textile combinations
Wall or ceiling coverings which comply with Note 9 to this Chapter are classified in heading 39.18. Otherwise, the classification of plastics and textile combinations is essentially governed by Note 1 (h) to Section XI, Note 3 to Chapter 56 and Note 2 to Chapter 59. The following products are also covered by this Chapter:
…
(d) Plates, sheets and strip of cellular plastics combined with textile fabrics (as defined in Note 1 to Chapter 59), felt or nonwovens, where the textile is present merely for reinforcing purposes.
In this respect, unfigured, unbleached, bleached or uniformly dyed textile fabrics, felt or nonwovens, when applied to one face only of these plates, sheets or strip, are regarded as serving merely for reinforcing purposes. Figured, printed or more elaborately worked textiles (e.g., by raising) and special products, such as pile fabrics, tulle and lace and textile products of heading 58.11, are regarded as having a function beyond that of mere reinforcement.
* * * * *
EN 39.21 provides the following, in pertinent part:
This heading covers plates, sheets, film, foil and strip, of plastics, other than those of heading 39.18, 39.19 or 39.20 or of Chapter 54. It therefore covers only cellular products or those which have been reinforced, laminated, supported or similarly combined with other materials. (For the classification of plates, etc. combined with other materials, see the General Explanatory Note.)
* * * * *
EN 59.03 provides the following, in pertinent part:
Except in the case of textile products of heading 58.11, textile fabrics combined with plates, sheets or strip of cellular plastics, where the textile fabric is present merely for reinforcing purposes, are also classified in Chapter 39 (see the General Explanatory Note to Chapter 39, part entitled “Plastics and textile combinations”, penultimate paragraph).
* * * * *
Note 1(h) to Section XI, HTSUS, which includes Chapter 59, provides that the section does not cover “Woven, knitted, or crocheted fabrics, felt or nonwovens, impregnated, coated, covered or laminated with plastics, or articles thereof, of chapter 39.” Under Note 2(a)(5) to Chapter 59, merchandise is precluded from classification in heading 5903, HTSUS, when it is comprised of “Plates, sheets or strip of cellular plastics, combined with textile fabric, where the textile fabric is present merely for reinforcing purposes (chapter 39).” The General Notes to the EN for Chapter 39 define cellular plastics as: “…plastics having many cells (either open, closed or both), dispersed throughout their mass. They include foam plastics, expanded plastics and microporous or microcellular plastics. They may be either flexible or rigid.” The CBP Laboratory reported that the merchandise consists of poly (vinyl chlorite) type cellular plastic material. Since the merchandise is composed of cellular plastic, the issue that must be resolved is whether the knit textile fabric is present merely for reinforcing purposes.
If the textile backing acts as more than “mere reinforcement,” classification in Chapter 39, HTSUS, is not warranted. The EN to Chapter 39 further clarify what is meant by “mere reinforcement,” providing that “unfigured, unbleached, bleached or uniformly dyed textile fabrics, felt or nonwovens, when applied to one face only of these plates, sheets or strip, are regarded as serving merely for reinforcing purposes.” In the instant case, the knit fabric is bleached in a uniform color, with no apparent raising, brushing, or other further working. Additionally, the cellular plastic coating, which imitates leather and completely covers one side of the textile backing, is the visible surface of the material as the textile fabric will remain hidden in the final production of automobile seat covers. Therefore, we conclude that the textile fabric is present merely to reinforce the polyvinyl chloride (PVC). Accordingly, Yanfeng Part Nos. 3094490-DJ9 and 3094490-ZHE are excluded from classification in heading 5903, HTSUS, by Note 2(a)(5) to Chapter 59, HTSUS, which directs classification as an article of plastic of Chapter 39, HTSUS.
Protestant claims the upholstery is properly classified in heading 5903, HTSUS, as textile fabrics impregnated, coated, covered or laminated with plastics. Protestant relies upon CBP’s decision in NY M87797 to support classification in heading 5903, HTSUS. In NY M87797, CBP classified five samples, described as follows:
All five materials consist of a knit backing fabric, which is composed of either 100% polyester man-made fibers or a 65% polyester/35% cotton blend. These knit backings have been coated/laminated on one side with a cellular polyvinyl chloride plastics material having a rather substantial top compact skin. This PVC portion, in all instances, has been dyed and embossed to simulate real leather and will form the outer surface of the material when deployed in automotive interiors. The PVC portions comprise over 70 percent by weight of the total weight of the respective materials in all five instances.
NY M87797 does not discuss whether the knit backing fabric was present merely for reinforcement purposes. Therefore, we cannot say with certainty that the merchandise in NY M87797 and the materials at issue here are identical in nature.
Classifying Yanfeng Part Nos. 3094490-DJ9 and 3094490-ZHE in heading 3921, HTSUS, is consistent with prior CBP rulings wherein plain knit fabric was deemed mere reinforcement for a cellular plastic layer. See NY N304281 (Oct. 15, 2019); NY N302003 (Aug. 8, 2019); NY J81766 (Apr. 7, 2003); and NY H88189 (Feb. 26, 2002). For example, in NY J81766, CBP classified upholstery comprised of a thick cellular PVC layer with a thin film embossed top which simulated leather grain. The PVC was glued or laminated to a 65% cotton/35% polyester plain jersey knit fabric, which CBP concluded served only as reinforcement because it was not further worked. Similarly, NY H88189 classified an imitation leather material used in office furniture upholstery that consisted of a thick cellular plastic layer and a thin plastic coat embossed and colored dark blue. The plastics portion was backed with a thin, plain circular/weft knit fabric composed of 100% polyester fiber, which was considered mainly for reinforcement. Comparatively, in that same ruling, CBP classified two other imitation leather materials, each consisting of a thick cellular layer backed with a circular/weft knit fabric of man-made fiber, in heading 5903, HTSUS. In those samples, however, CBP determined the textile backings were more than “plain” knit fabric used as mere reinforcement because the fabric was brushed.
Inasmuch as the subject merchandise consists of a knit textile fabric that has been coated with a plastic layer, and that textile fabric is merely for reinforcing purposes, the subject merchandise is excluded from classification in Chapter 59, HTSUS, by Note 3 to Section XI, HTSUS, and in accordance with Note 2(a)(5) to Chapter 59, HTSUS. Therefore, both samples are provided for in heading 3921, HTSUS. Since polyester fibers predominate by weight over the cotton fibers in the fabric backings, and the PVC makes up over 70 percent by weight of the each sample, classification falls in subheading 3921.12.11, HTSUS.
Accordingly, based on the information provided by Protestant and the CBP Laboratory, we find that Yanfeng Part Nos. 3094490-DJ9 and 3094490-ZHE are provided for in heading 3921, HTSUS, and specifically in subheading 3921.12.11, HTSUS, 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.”
HOLDING:
By application of GRI 1, Yanfeng Part Nos. 3094490-DJ9 and 3094490-ZHE are classified in subheading 3921.12.11, HTSUS, which provides, “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.” The 2016 column one, general rate of duty is 4.2% ad valorem.
You are instructed to deny the protest, except to the extent reclassification of the merchandise as indicated above results in a partial allowance.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the Protestant no later than 60 days from the date of this letter. Any re-liquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (“CROSS”) at https://rulings.cbp.gov/ which can be found on the U.S. Customs and Border Protection website at http://www.cbp.gov and other methods of public distribution.
Sincerely,
For Craig T. Clark, Director
Commercial and Trade Facilitation Division