OT:RR:CTF:FTM H318221 TJS
TARIFF NOs.: 3921.19.00; 5903.20.25
Center Director
CEE - Apparel, Footwear and Textiles
U.S. Customs and Border Protection
2813 Business Park Drive
Memphis, TN 38118
Attn: Susan Coleman, Supervisory Import Specialist
Re: Application for Further Review of Protest No. 2006-20-105879; Tariff Classification of
PU-Coated and Silicone-Coated Textiles
Dear Center Director:
This letter is in reference to the Application for Further Review (“AFR”) of Protest No.
2006-20-105879, received on December 31, 2020, filed by Sonnenberg & Cummingham, PA, on
behalf of Big Kahuna Fabrics (“Protestant” or “Big Kahuna”), regarding U.S. Customs and Border
Protection’s (“CBP”) tariff classification of two types of coated textiles under the Harmonized
Tariff Schedule of the United States (“HTSUS”) and the applicability of Section 301 trade
remedies. 1
FACTS:
The merchandise subject to this protest are performance fabrics designed for and suitable
for use in sofas, chairs, and other furniture to be used in hospitals and similar locations. They are
commonly and commercially known as “imitation leather.” There are two styles of fabrics subject
to this AFR: a polyurethane (“PU”)-coated textile referred to as “KC River CPU” and a silicone-
coated textile referred to as “Silex.”
1
According to the protest submission, there are three categories of protested merchandise: textiles coated with
polyurethane (PU), textiles coated with polyvinylchloride (PVC), and silicone-coated textiles. A separate AFR
decision for Protest No. 2006-20-104540 addresses the tariff classification of the PVC-coated textiles and most styles
of the PU-coated textiles. See Headquarters Ruling Letter (“HQ”) H314125.
KC River CPU (PU-coated)
According to the protest submission, this AFR covers one entry of the KC River CPU
material, which was entered on February 29, 2020, and liquidated October 16, 2020. The
merchandise was liquidated as entered under subheading 5903.20.25, HTSUS, which provides for
“Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of
heading 5902: With polyurethane: Of man-made fibers: Other: Other.” The Protestant now argues
that the merchandise should be classified under subheading 5903.20.15, HTSUS, which provides
for “Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of
heading 5902: With polyurethane: Of man-made fibers: Fabrics specified in note 9 to section XI:
Over 60 percent by weight of plastics.”
The Protestant provided photographs of the KC River CPU fabric, but did not provide a
sample to CBP. According to the Protestant, the fabric’s composition by weight was 64% PU,
27% polyester, and 9% cotton. Additionally, the fabric is described as having a woven, brushed
textile that consists of two layers of parallel textile yarns superimposed on each other at acute
angles and these yarn layers are bonded at intersections of yarns.
Silex (silicone-coated)
This AFR covers one entry of the Silex material, which was entered on September 19,
2019, and liquidated on August 7, 2020. 2 The merchandise liquidated as entered under subheading
5903.90.25, HTSUS, which provides for “Textile fabrics impregnated, coated, covered or
laminated with plastics, other than those of heading 5902: Other: Of man-made fibers: Other:
Other.” The Protestant now argues that the Silex material should be classified under subheading
5903.90.20, HTSUS, which provides for “Textile fabrics impregnated, coated, covered or
laminated with plastics, other than those of heading 5902: Other: Of man-made fibers: Other: Over
70 percent by weight of rubber or plastics,” but in the alternative remain classified under
subheading 5903.90.25, HTSUS. The Protestant also claims that the Silex fabric should receive a
refund of additional Section 301 duties under U.S. Note 20(qq)(38) to subchapter III of Chapter
99, HTSUS.
In Attachment E to its submission, the Protestant describes the product as a textile fabric
coated with silicone on one side. According to the Protestant, the product’s content is 36% silicone
and 64% polyester. Protestant claims that the “textile enables the product to be manufactured
easily and offers physical strength and a soft hand and luxurious look.” Furthermore, the Silex
collection is said to contain many fabrics with different colors and possible decorations, but the
construction of the fabrics in each of these collections is identical.
CBP Laboratories and Scientific Services Directorate (“CBP Laboratory”) analyzed a
sample of the Silex fabric, which Protestant provided. CBP Laboratory Report NY20211088,
dated October 8, 2021, determined that the Silex sample was composed of a dyed knitted polyester
fabric that was coated, covered, impregnated, or laminated with a cellular polydimethylsiloxane
(silicone) type plastic material on one of its surfaces. The textile component was of non-pile weft
2
In its submission, the Protestant indicates there are three entries of Silex under protest. However, one entry is
untimely with respect to this protest and another entry is not subject to this protest.
2
knit construction and had not been brushed or napped. The sample was composed of 54.8%
polyester and 45.2% plastic material.
ISSUE:
What is the tariff classification of the coated textiles under the HTSUS?
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. (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)). However, two entries were liquidated more than 180
days prior to the protest filing and are therefore untimely. Further Review of Protest No. 2006-
20-105879 is properly accorded to Protestant for the remaining entries pursuant to 19 C.F.R. §
174.24(b) because the decision against which the protest was filed is alleged to involve questions
of law or 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 determined in accordance with the General Rules of
Interpretation (“GRIs”). 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. If 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 then be applied. 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 2019 and 2020 HTSUS provisions under consideration are as follows:
3921: Other plates, sheets, film, foil and strip, of plastics:
Cellular:
3921.19.00: Of other plastics…
* * * * *
5903: Textile fabrics impregnated, coated, covered or laminated with plastics, other than
those of heading 5902:
5903.20: With polyurethane:
Of man-made fibers:
Fabrics specified in note 9 to section XI:
5903.20.15: Over 60 percent by weight of plastics…
Other:
5903.20.25: Other…
5903.90: Other:
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Of man-made fibers:
Other:
5903.90.20: Over 70 percent by weight of rubber or plastics…
5903.90.25: Other…
* * * * *
Note 9 to Section XI (Textiles and Textile Articles) states:
9. 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 relevant part:
2. 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); or
* * * * *
In addition, the Explanatory Notes (“ENs”) 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 ENs to Chapter 39 provide the following, in pertinent part:
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:
…
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(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.
* * * * *
The General ENs to Section XI (Textiles and Textile Articles), HTSUS, provide in
pertinent part:
[T]he woven fabrics of Chapters 50 to 55, by application of Note 9 to Section XI, include,
for example, fabrics consisting of :
- one layer of parallel “warp” yarns with a layer of parallel “weft” yarns superimposed
at acute or right angles;
- two layers of parallel “warp” yarns between which a layer of “weft” yarns is inserted
at acute or right angles.
The essential characteristic of these fabrics is that the yarns are not interlaced as in
conventional woven fabrics but are bonded at the intersections with an adhesive or by
thermal bonding.
These fabrics are sometimes referred to as mesh scrims; their uses include the
reinforcement of other materials (plastics, paper, etc.). They are also used, for example,
for the protection of agricultural crops.
* * * * *
KC River CPU (PU-coated)
The Protestant asserts that the KC River CPU fabric is properly classified in subheading
5903.20.15, HTSUS. There is no dispute that the item is classified in subheading 5903.20,
HTSUS, as a textile fabric combined with PU, of man-made fibers. The issue is whether the fabric
is specified in Note 9 to Section XI, HTSUS, which requires that the product consists of layers of
parallel textile yarns superimposed on each other at acute or right angles and further requires that
the yarns be bonded at the intersections by adhesive or thermal bonding.
The Protestant has provided no evidence to support its claim that the KC River CPU fabric
is of Note 9 construction, nor is there other evidence of record from which we can independently
determine the validity of the claim. Although the independent lab report describes the KC River
CPU sample as meeting the terms of Note 9, it is important to note that the appearance description
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was provided by Big Kahuna, not verified by the laboratory. Additionally, the ENs to Section XI
describe fabrics of Note 9 construction as mesh scrims used for reinforcement or protection
purposes. Unlike these technical uses, the KC River CPU fabric is used as furniture upholstery.
Given the lack of substantiating information, the KC River CPU remains classified in subheading
5903.20.25, HTSUS.” 3
Silex (Silicone-coated)
The Protestant asserts that Silex is properly classified in subheading 5903.90.20, HTSUS.
We initially note that subheading 5903.90.20, HTSUS, requires that fabric has over 70% by weight
of rubber or plastic. The CBP Laboratory determined that the plastic content was 45.2% by weight.
Even in its own submission the Protestant describes the product of having only 36% by weight of
silicone. Since the fabric contains less than 70% by weight of plastic, it cannot be classified in
subheading 5903.90.20, HTSUS.
The ENs to Chapter 39, HTSUS, indicate that the Chapter covers plates, sheets, and strip
of cellular plastics combined with textile fabrics that are present merely for reinforcement. The
ENs 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 non-pile weft knit fabric is dyed 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 the furniture pieces.
Thus, contrary to the Protestant’s claim that the textile fabric provides a soft hand feeling and
luxurious look, the textile fabric is not used for its feel or appearance.
Therefore, we conclude that the textile fabric is simple knit backing present merely to
reinforce the cellular plastic. Accordingly, the Silex fabric is 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. We find that the Silex product is classified in heading
3921, and specifically under subheading 3921.19.00, HTSUS, as “Other plates, sheets, film, foil
and strip, of plastics: Cellular: Of other plastics.”
Regarding Section 301 duties, since the Silex fabric is not classified in statistical
subheading 5903.90.2000, HTSUS Annotated, it is not covered by the Section 301 exclusion
provided for in U.S. Note 20(qq)(38) to subchapter III of Chapter 99, HTSUS.
3
Protestant also asserts that the KC River CPU should be classified consistently with the PU-coated fabrics addressed
in HQ H314125 (AFR of Protest No. 2006-20-104540). We determined the PU-coated fabrics subject in that ruling
also did not meet the description in Note 9 to Section XI, HTSUS.
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HOLDING:
By application of GRIs 1 and 6, KC River CPU is classified under heading 5903, HTSUS,
specifically in subheading 5903.20.25, HTSUS, which provides for “Textile fabrics impregnated,
coated, covered or laminated with plastics, other than those of heading 5902: With polyurethane:
Of man-made fibers: Other: Other.” The 2020 column one, general rate of duty is 7.5% ad
valorem.
By application of GRIs 1 and 6, Silex is classified under heading 3921, HTSUS,
specifically in subheading 3921.19.00, HTSUS, which provides for “Other plates, sheets, film, foil
and strip, of plastics: Cellular: Of other plastics.” The 2019 column one, general rate of duty is
6.5% ad valorem.
You are instructed to DENY the protest, except to the extent reclassification of the
merchandise as indicated above results in a net duty reduction and partial allowance.
You are instructed to notify the protestant of this decision no later than 60 days from the
date of this decision. Any reliquidation of the entry or entries in accordance with the decision
must be accomplished prior to this notification. Sixty days from the date of the decision, the Office
of Trade, Regulations and Rulings will make the decision available to CBP personnel and the
public on the Customs Rulings Online Search System (CROSS) at https://rulings.cbp.gov/, or other
methods of public distribution.
Sincerely,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division
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