CLA-2 RR:TC:TE 960345 jb
Tim O'Grady
3G Mermet Corporation
5555 Fair Lane
Cincinnati, Ohio 45227
RE: Request for Reconsideration of HQ 084721 and NY 837567;
classification of woven fabric consisting of yarns made with a
fiber glass core coated with plastic material; GRI 3(c);
heading 7019
Dear Mr. O'Grady:
This is in response to your letter, received by our New York
office, dated February 19, 1997, requesting reconsideration of
New York Ruling Letter (NY) 837567, dated March 9, 1989, and
Headquarter Ruling Letter (HQ) 084721, dated August 24, 1989,
which classified woven glass fiber fabrics in heading 7019,
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA). A sample of the subject merchandise was submitted for
examination.
FACTS:
We should first make note that the samples submitted cover a
variety of style numbers which are intended either as interior
and/or exterior shade systems, or contact fabrics for roller
shade and/or vertical blind applications. We assume that
although the style names/numbers may have changed since NY 837567
and HQ 084721 were issued, the composition of the merchandise is
essentially the same as was addressed in those rulings. If this
assumption is not correct this office should be contacted with
the accurate details. Additionally, we bring to your attention
that in NY 837567 a classification determination was not given
for the products identified as "Thermoscreen material" because of
insufficient information submitted at that time. Accordingly,
this ruling will only address itself to the Thermoscreen material
classified in HQ 084721.
The merchandise at issue in HQ 084721 addressed eight
samples of woven glass fiber fabrics:
Each is a woven swatch of fabric which is composed of 73
percent plastics and 27 percent glass fibers (by both weight
and value). Five samples are woven with a basket weave.
The other three samples are made with a more complex weave
which gives them a twill-like appearance. They are
manufactured by coating a core of filament glass fibers with
polyvinyl chloride (PVC), weaving, and then heat setting the
fabric. The PVC coating which sheathes the glass fiber
yarns is colored.... The fabrics will be imported in 98.4
inch widths.
Each of the styles is imported in a variety of color
combinations. The Thermoscreen will be used as a sunscreen in a
variety of indoor and outdoor applications including the
manufacture of blinds.
In your opinion the subject merchandise is not classified in
heading 7019, HTSUS, which provides for, glass fibers and
articles thereof. You propose that the correct classification
for the subject merchandise is in heading 3926, HTSUS, which
provides for, other articles of plastics and articles of other
materials of headings 3901 to 3914. In support of this claim you
state that:
1. It is the "PVC" that provides the coloration, the ultra
violet light protection and the long lasting
appearance, durability, of the textile;
2. This product would not be possible without the "PVC"
coating or similar "plastic compound", however,
fiberglass can and is substituted as the support
structure for other brands of similar textiles.
ISSUE:
Whether the subject merchandise is properly classified in
heading 7019, HTSUS, which provides for, glass fibers and
articles thereof, or in heading 3926, HTSUS, which provides for,
other articles of plastics and articles of other materials of
headings 3901 to 3914?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is governed
by the General Rules of Interpretation (GRI's). GRI 1 requires
that classification be determined according to the terms of the
headings and any relative section or chapter notes. Where goods
cannot be classified solely on the basis of GRI 1, the remaining
GRI's will be applied, in the order of their appearance.
We should point out, as you accurately stated in your
submission, that the subject merchandise is not considered a
textile man-made fiber. Chapter 54, HTSUS, provides for man-made
filaments. Note 1 to chapter 54, HTSUS, defines the term "man-made fibers", in part, as staple fibers and filaments of organic
polymers. As fiberglass is not a polymer but a mixture of
inorganic compounds primarily composed of silicon dioxide, it is
not a man-made fiber as per Note 1 to chapter 54, HTSUS.
The first step in the analysis of the classification of this
product requires a characterization of the individual threads
that compose this fabric. From this point we can determine
whether the threads are man-made monofilaments and if the subject
merchandise can be construed as a textile.
Heading 5404, HTSUS, provides for synthetic monofilament of 67
decitex or more and of which no cross-sectional dimension exceeds
1mm; strip and the like (for example, artificial straw) of
synthetic textile materials of an apparent width not exceeding
5mm. The Explanatory Notes to the Harmonized Commodity
Description and Coding System (EN) to heading 5404, HTSUS, in
defining "synthetic monofilament" state:
These are filaments extruded as single filaments. They are
classified here only if they measure 67 decitex or more and
do not exceed 1mm in any cross-sectional dimension.
Monofilaments of this heading may be of any cross-sectional
configuration and may be obtained not only by extrusion but
by lamination or fusion.
The yarns in the subject merchandise are under 1 millimeter
in cross section and the plastic material represents 73 percent
by weight and value. In the opinion of this office the glass
fibers coated with PVC are not produced by any of the methods
explicitly stated in the note and as such, are not considered
monofilaments. Further weight for this determination can be seen
through the classification of textile yarns of headings 5404 and
5405, HTSUS, which when coated, covered or sheathed with rubber
or plastics are precluded from classification as monofilaments
and are classified in heading 5604, HTSUS (rubber thread and
cord, textile covered; textile yarn, and strip and the like of
heading 5404 or 5405, impregnated, coated, covered or sheathed
with rubber or plastics). Furthermore, it is clear from the
terms of heading 5604, HTSUS, that the fiberglass coated yarns
are not products specified by that heading since the heading
requires that the core be textile yarn or strip of headings 5404
or 5405. As the component yarns that make up this product
cannot be construed as textile, we have exhausted the
possibilities for classification of the subject article in the
textile provisions.
The subject merchandise is made up of both plastic and
fiberglass. General Rule of Interpretation 3 states:
(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.
The EN for GRI 3(b) state that some of the factors that may be
considered in determining which material provides the essential
character to a composite good include bulk, quantity, weight, and
the role of the material in relation to the use of the product.
We do not dispute the fact that the PVC predominates by weight
and value and that it provides a stabilizing mechanism for the
open mesh. Additionally, the plastic can be colored more easily
than the fiberglass and improves the ease of the weaving.
However, the fiberglass also provides many characteristics to the
product which are crucial to the use of this merchandise. These
characteristics include strength, durability, and resistance to a
variety of factors such as bacteria and tear as well as providing
thermal resistance and flame retardancy. Thus, both the plastic
and the fiberglass make the subject merchandise suitable for its
intended purpose as an indoor and outdoor screen material.
Your assertion that a material other than fiberglass may be
substituted for the fiberglass is without merit and does not
prove that the essential character of this merchandise is
imparted by the plastic. Although another fiber may be
substituted for the fiberglass, the substituted fiber would be
required to provide the merchandise with the same characteristics
as the fiberglass and thus would still be at least, equally
necessary to the composition and role of the merchandise.
As we cannot accurately determine a classification based on
GRI 3(b), we proceed to GRI 3(c) which states:
When goods cannot be classified by reference to 3(a) or
3(b), they shall be classified under the heading which occurs
last in numerical order among those which equally merit consideration.
There are three plausible headings for this merchandise,
that is, headings 4601, 3926, and 7019, HTSUS. Heading 4601,
HTSUS, provides for, among other things, plaits and similar
products of plaiting materials, whether or not assembled into
strips. This classification is precluded because only
monofilaments or strips of plastics of chapter 39, HTSUS, qualify
as plaiting material. Additionally, since the yarns that make up
this product do not conform to the dimensional or structural
requirements of plastic filaments or strip, this provision is
precluded. Heading 3926, HTSUS, provides for, other articles of
plastics and articles of other materials of headings 3901 to
3914. The EN to chapter 39, HTSUS, provide for, under
"Combinations of plastics and materials other than textiles":
(d) Products consisting of glass fibres or sheets of paper,
impregnated with plastics and compressed together,
provided they have a hard, rigid character. (If having
more the character of paper or articles of glass fibres
they are classified in Chapter 48 or 70, as the case
may be.)
The provisions of the preceding paragraph also apply,
mutatis mutandis, to monofilaments, rods, sticks, profile
shapes, tubes, pipes and hoses and articles.
The remaining provision meriting consideration is heading 7019,
HTSUS, which provides for glass fibers and articles thereof. As
we have already determined that no essential character may be
determined for this merchandise and no new or pertinent
information was submitted this office to rebut this
classification, the merchandise remains classified in heading
7019, HTSUS.
The subject merchandise was properly classified in HQ 084721
in heading 7019, HTSUS. At the time HQ 084721 was issued, the
tariff simply provided for "colored fabrics of glass fibers" in
subheading 7019.20.5000, HTSUSA. Since that time, classification
of this merchandise under the HTSUSA has been restructured to
take into consideration the composition of the glass fibers. As
information relating to the composition of the glass fibers was
neither submitted at the time of the issuance of HQ 084721, nor
with your request for reconsideration, we cannot provide you with
a specific classification determination under heading 7019,
HTSUS. The classification will differ depending on whether the
woven fabrics are made of rovings, subheading 7019.40.9000,
HTSUSA, or if not made of rovings, if the yarns are twisted,
subheading 7019.59.9000, HTSUSA.
HOLDING:
The subject merchandise was properly classified in HQ 084721
in heading 7019, HTSUS.
If the subject merchandise is made of glass fiber rovings,
the proper classification is subheading 7019.40.9000, HTSUSA,
which provides for, glass fibers (including glass wool) and
articles thereof (for example, yarn, woven fabrics): woven
fabrics of rovings: other: colored: other. The applicable rate
of duty is 9.9 percent ad valorem and the quota category is 622.
If the subject merchandise is made of glass fiber twisted
yarns, the proper classification is subheading 7019.59.9000,
HTSUSA, which provides for glass fibers (including glass wool)
and articles thereof (for example, yarn, woven fabrics): other
woven fabrics: other: colored: other. The applicable rate of
duty is 9.9 percent ad valorem and the quota category is 622.
The designated textile and apparel category may be
subdivided into parts. If so, visa and quota requirements
applicable to the subject merchandise may be affected. Since
part categories are the result of international bilateral
agreements which are subject to frequent negotiations and
changes, we suggest that your client check, close to the time of
shipment, the Status Report on Current Import Quotas (Restraint
Levels), an issuance of the U.S. Customs Service which is updated
weekly and is available at the local Customs office.
Due to the changeable nature of the statistical annotation
(the ninth and tenth digits of the classification) and the
restraint (quota/visa) categories, your client should contact the
local Customs office prior to importing the merchandise to
determine the current status of any import restraints or
requirements.
Sincerely,
John Durant, Director
Tariff Classification Appeals
Division