CLA-2 OT:RR:CTF:TCM H205397 TNA
Port Director, Service Port- Chicago
U.S. Customs and Border Protection
5600 Pearl Street Rosemont, IL 60018
Attn: Roberto Martinez, Import Specialist
Re: Application for Further Review of Protest No: 3901-11-101075; textile fabric laminated with paper
Dear Port Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 3901-11-101075, timely filed on October 26, 2011. The AFR concerns the classification of textile fabric laminated with paper under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The subject merchandise consists of textile fabrics in rolls that are permanently affixed to a single layer of paper. They are 100% Viscose textile fabrics whose paper backing is applied to the fabric in a separate step of the manufacturing process, following the creation of the fabric. The backing is made from a paper pulp without any further materials. In order to affix it to the fabric, glue is applied to the paper with a rotation screen. The paper and the glue are then run between two cylinders that press them together and run them through a dry zone.
U.S. Customs and Border Protection (“CBP”) obtained three samples of the subject merchandise and sent them to a CBP laboratory for testing. The resulting laboratory report on the first sample, sample #53429, stated that it was woven fabric composed of 100% rayon (man-made) fibers. The paper was uncoated, and no application of plastic or rubber material was detected. By weight, sample #53429 was found to be 68 percent rayon and 32 percent paper.
The second CBP laboratory report tested sample FAB # 133802 and found it to be woven fabric backed with uncoated paper. The fabric consisted of 100 percent rayon, a man-made fabric. By weight, sample FAB # 133802 consisted of 67 percent rayon and 33 percent paper. Its fabric separated from its backing after being soaked with a solvent. No application of plastics or rubber was detected on the fabric. The third CBP laboratory report tested sample #136639. By weight, sample #136639 consisted of 70 percent rayon and 30 percent paper. No application of plastics or rubber was detected.
The subject merchandise was entered on April 13, 2010, and May 21, 2010, under subheading 5907.00.60, HTSUS, which provides for: “Textile fabrics otherwise impregnated, coated or covered; painted canvas being theatrical scenery, studio back-cloths or the like: Laminated fabrics; fabrics specified in note 9 to section XI: Of man-made fibers: Other.” CBP liquidated the merchandise on April 29, 2011, in subheading 5907.00.15, HTSUS, as “Textile fabrics otherwise impregnated, coated or covered; painted canvas being theatrical scenery, studio back-cloths or the like: Other: Of man-made fibers.” Protestant filed this protest on October 26, 2011, claiming classification as entered.
ISSUE:
Whether the subject merchandise should be classified in subheading 5907.00.15, HTSUS, as other laminated fabrics or fabrics specified in note 9 to Section XI, HTSUS, or in subheading 5907.00.60, HTSUS, as other textile fabrics of man-made fibers?
LAW AND ANALYSIS:
Initially, we note that the matter protested 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. 3901-11-101075 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) because it is alleged that the Port’s liquidation is inconsistent with prior CBP rulings. Specifically, the Protestant argues that the Port’s liquidation of the subject merchandise in subheading 5907.00.15, HTSUS, contradicts Headquarters Ruling Letter (HQ) 966508, dated March 17, 2004, and New York Ruling Letter (NY) N055659, dated March 1, 2010.
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:
5907.00 Textile fabrics otherwise impregnated, coated or covered; painted canvas being theatrical scenery, studio back-cloths or the like:
Laminated fabrics; fabrics specified in note 9 to section XI:
Of man-made fibers:
5907.00.15 Other (229)
Other:
5907.00.60 Of man-made fibers (229)
Note 9 to Section XI, HTSUS, which includes Chapter 57, HTSUS, states the following:
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.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not 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 (Aug. 23, 1989).
The EN to heading 59.07 states, in pertinent part:
This group covers textile fabrics (excluding those of headings 59.01 to 59.06), which have been impregnated, coated or covered, provided the impregnation, coating or covering can be seen with the naked eye; for that purpose, no account should be taken of any resulting change of colour.
Textile fabrics in which the impregnation, coating or covering cannot be seen or can be seen only by reason of a resulting change in color, and fabrics finished with normal dressings having a basis of amaylaceous or similar substances are excluded (see Note 5 to this Chapter); these usually fall in Chapters 50 to 55, 58 or 60.
We begin by noting that it is not in dispute that the subject merchandise is described by the terms of heading 5907, HTSUS. Protestant argues that the subject merchandise cannot be classified as liquidated in subheading 5907.00.15, HTSUS, because the subject fabric does not meet the definition of the term “laminated.” Protestant argues that laminated fabrics consist of two or more layers of cloth joined together with an adhesive, or a layer of fabric bonded to a plastic sheet, and that its merchandise does not meet this definition. Protestant further argues that its merchandise does not meet the terms of Note 9 to Section XI, HTSUS. Lastly, Protestant argues that CBP’s liquidation of the subject merchandise is inconsistent with HQ 966508 and NY N055659. Therefore, Protestant argues for classification in subheading 5907.00.60, HTSUS, as “Textile fabrics otherwise impregnated, coated or covered; painted canvas being theatrical scenery, studio back-cloths or the like: Other: Of man-made fibers.”
In response, we note that the term “laminated” is not defined in the tariff schedule of the ENs. As a result, CBP is permitted to consult dictionaries and other lexicographic materials to determine the term’s common meaning. See, e.g., Lonza, Inc. v. United States, 46 F.3d 1098 (Fed. Cir. 1995). The term in question is then construed in accordance with its common and commercial meanings, which are presumed to be the same. See, e.g., Nippon Kogasku (USA), Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982); Toyota Motor Sales, Inc. v. United States, 7 C.I.T. 178 (Ct. Int’l Trade 1984); Carl Zeiss, Inc. v. United States, 195 F.3d 1375 (Fed. Cir. 1999); Lonza, 46 F.3d 1098.
Furthermore, in Amity Leather Co. v. United States, the court defined “laminated” as “composed of layers bonded together.” See Amity Leather Co. v. United States, 20 C.I.T. 1049, 1053 (Ct. Int’l. Tr. 1996). This is consistent with recent dictionary definitions. The Oxford English Dictionary (“OED”), for example, defines “laminated” as “formed or manufactured in a succession of layers of material.” As an example, the OED states that “laminated plastics” are “a more or less rigid material made by bonding together, usually by means of heat and pressure, layers of cloth, paper, or the like that have been impregnated or coated with a synthetic resin.” See www.oed.com. Furthermore, Webster’s New World College Dictionary defines “laminated” as “composed of or built in thin sheets or layers, as of fabric, wood, plastic, etc., that have been bonded or pressed together, sometimes under heat.” See Webster’s New World Dictionary of American English 802 (4th Ed. 2007).
In the present case, the subject merchandise consists of woven Viscose textile fabrics that are affixed to a layer of paper, using glue as an adhesive. Thus, information provided by the manufacturer shows that at least one layer of fabric is bonded to at least one layer of paper. The above-cited definitions do not require that laminated fabrics consist of two or more layers of cloth joined together with an adhesive, or a layer of fabric bonded to a plastic sheet, as Protestant argues. To the contrary, they are broad enough to encompass fabrics that are bonded to paper, even where only one layer of each material is present. As a result, the subject merchandise fits the definition of the term “laminated.”
We acknowledge that the manufacturer’s information notes that this is not a hot melt glue process; however, under the definitions cited above, while lamination can be achieved using heat, heat is not required. Thus, even if the subject fabric is affixed to the paper without heat, it still fits the definition of “laminated.” Furthermore, classification of the subject merchandise in subheading 5907.00.15, HTSUS, is consistent with prior CBP rulings. See, e.g., NY J86484, dated July 8, 2003; NY J89510, dated October 7, 2003; NY K87539, dated July 15, 2004; NY N019300, dated December 13, 2007; HQ H027187, dated March 19, 2009.
Protestant also argues that the subject merchandise is not fabric of Note 9 to Section XI, HTSUS, so it cannot be classified in subheading 5907.00.15, HTSUS. However, the clause “laminated fabrics” of subheading 5907.00.15, HTSUS, is separated from the clause “fabrics specified in note 9 to section XI” by a semi-colon. As a result, because we found that the subject merchandise consists of “laminated fabrics,” it is described by the terms of subheading 5907.00.15, HTSUS, regardless of whether it consists of “fabrics specified in note 9 to section XI.” Thus, the terms of Note 9 do not affect classification of the subject merchandise in subheading 5907.00.15, HTSUS, as a laminated fabric.
Lastly, Protestant cites HQ 966508 and NY N055659 in support of classification in subheading 5907.00.60, HTSUS. In reviewing these rulings, we note that they can be distinguished from the subject merchandise. HQ 966508 classified blackout curtains in heading 5907, HTSUS. There, however, the issue was whether the curtains met the definition of “textile fabric otherwise impregnated, covered or coated.” The question of whether the curtains were laminated neither arose nor was addressed by the ruling’s analysis. As a result, we find that HQ 966508 is not applicable to the subject merchandise. NY N055659 classified bonded fabric composed of three distinct layers and made from a brushed, satin weave construction of 53.6% staple polyester and 46.4% textured filament polyester. There, CBP classified this merchandise in heading
6001, HTSUS, which provides for “Pile fabrics, including "long pile" fabrics and terry fabrics, knitted or crocheted.” Because this is a different type of fabric that was classified in a different heading than the one at issue in the present case, we find NY N055659 inapplicable. As a result, Protestant’s cited cases are not helpful in the analysis of the subject merchandise.
HOLDING:
By application of GRI 1, the subject textile fabric laminated with paper is classified under heading 5907, HTSUS. It is specifically provided for under subheading 5907.00.15, HTSUS, which provides for: “Textile fabrics otherwise impregnated, coated or covered; painted canvas being theatrical scenery, studio back-cloths or the like: Laminated fabrics; fabrics specified in note 9 to section XI: Of man-made fibers: Other.” The general, column one, rate of duty is 8% ad valorem.
You are instructed to DENY the protest.
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 reliquidation 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 International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.CBP.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division