CLA-2 OT:RR:CTF:TCM HQ H242096 TNA
Port Director
Service Port- New Orleans
U.S. Customs and Border Protection
423 Canal Street, Room 260
New Orleans, LA 70130
Attn: Paralegal Specialist Lisa M. Dupuy
RE: Internal Advice Request 13/020; classification of plastic coated fabric
Dear Fines, Penalties and Forfeitures Officer:
This is in response to your Request for Internal Advice, dated April 13, 2013, initiated by FNS Customs Brokers, Inc. (“FNS”) on behalf of its client, Moojin Chem Ltd. (“Moojin”), concerning the proper classification of plastic coated textile fabric under the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
The subject merchandise consists of two types of plastic coated textile fabric. The “Technical Data Sheet” submitted with the Request for Internal Advice, states that the first type, called “Fox Mesh Banner 8 oz.,” has a total weight of eight ounces per square yard. Its plastic PVC makes up 5.05 ounces per square yard, and the fabric portion makes up 2.95 ounces per square yard. The “Fox Mesh” is designed for producing full color, light weight screens and banners for use in areas with high wind or where large banners are required.
The “Technical Data Sheet” submitted for the second product at issue, “Fox Banner 12 oz., wide format,” states that its total weight is 12 ounces per square yard, and that it is composed of nine ounces of plastic PVC per square yard and three ounces of fabric per square yard. It has a gloss finish treatment and is specifically designed for billboards and outdoor signs. Samples of both products were received and examined by this office. Both contain frayed edges that are not embedded, coated or covered with plastic.
ISSUE:
Whether the subject plastic textile fabric is a plastic sheet of heading 3921, HTSUS, or a textile fabric impregnated, coated, covered or laminated with plastics of heading 5903, HTSUS?
LAW AND ANALYSIS:
Classification under the HTSUS is made 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. 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:
3921 Other plates, sheets, film, foil and strip, of plastics:
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:
3921.90.11 Over 70 percent by weight of plastics
3921.90.15 Other
5903 Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902:
5903.90 Other:
Of man-made fibers:
Fabrics specified in note 9 to section XI:
5903.90.15 Over 60 percent by weight of plastics
Note 2 to Chapter 39, HTSUS, states, in pertinent part, the following:
This chapter does not cover:…
(P) Goods of section XI (textiles and textile articles)
Note 10 to Chapter 39, HTSUS, states the following:
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 2 to Chapter 59, HTSUS, states, in pertinent part, the following:
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:…
(3) Products in which the textile fabric is 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 of color (chapter 39);
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 3921, HTSUS, provides, 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.)
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.
The EN to heading 5903, HTSUS, provides, in pertinent part:
This heading covers textile fabrics which have been impregnated, coated, covered or laminated with plastics (e.g., poly(vinyl chloride)).
Such products are classified here whatever their weight per m² and whatever the nature of the plastic component (compact or cellular), provided:…
(3) That the textile fabric is not completely embedded in, nor coated or covered on both sides with, plastics.
Products not meeting the requirements of subparagraph (2) or (3) above usually fall in Chapter 39. However, textile fabric coated or covered on both sides with plastics where the coating or covering cannot be seen with the naked eye, or can be seen only by reason of a resulting change in colour, usually falls in Chapters 50 to 55, 58 or 60. 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)…
In many of the textile fabrics classified here, the plastic material, usually coloured, forms a surface layer which may be smooth or be embossed to simulate, e.g., the grain of leather (“ leathercloth ”)…
The subject merchandise consists of fabric that has been entirely coated or covered with plastic. In order to be classified as an article of plastic of Chapter 39, HTSUS, however, it must be precluded from classification as a textile article of Section XI, HTSUS. See Note 2(P) to Chapter 39, HTSUS. As a result, we first examine whether the subject merchandise can be classified in Section XI, HTSUS. In order for the subject merchandise to be classified there, and in heading 5903, HTSUS, in particular, for which Moojin argues, it must meet the terms of Note 2 to Chapter 59, HTSUS. Under the terms of Note 2(a)(3), merchandise is precluded from classification in heading 5903, HTSUS, when it is either completely embedded in plastics, or entirely coated or covered on both sides with plastic. This coating or covering also must be visible to the naked eye and cannot be the result of a change in color. See Note 2(a)(3) to Chapter 59.
In examining fabric to determine whether it meets the criteria of Note 2 to Chapter 59, HTSUS, both courts and prior CBP rulings have consistently held that the edges of the fabric known as selvage are not considered part of the fabric for dutiable purposes. In A. Bonime v. United States, 22 C.C.P.A. 603 (1935), for example, the court, in discussing the relationship of a selvage to the cloth to which it was attached, stated that:
A selvage, which is that and nothing more, is merely incidental to the manufacture of the textile and is not designed to give character to the product; neither is it intended to form a material or essential part of the fabric when utilized by the final consumer. A true selvage prevents the fraying of the weft and the distortion of the cloth to which it is attached, and to that extent it serves a useful, not to say a necessary purpose; but it is no more a factor in determining the real nature, kind, quality, or character of the textile than is the tape wound about a bolt of the goods to keep them in place.
Bonime, 22 C.C.P.A at 606. The court then concluded that “the fact of the matter is that the selvage, strictly speaking, is not a part of a cloth fabric at all.” Id. at 606-6-7. The Bonime court held that the selvage was not a factor to be considered in the classification determination of the whole fabric article if the selvages do not form a material, substantial, or essential part of the fabric in actual consumption. Bonime at 606, 609 (citing United States v. Mandel, 1 Ct. Cust. 223 (Ct. Cust. App. 1911); United States v. Auffmordt & Co., 3 Ct. Cust. 236 (Ct. Cust. App. 1912)). Later courts discussing the Bonime case have “defined the term ‘fabric’ as meaning the body of the cloth without the selvage.” Platon Fabrics Corp. v. United States, 56 C.C.P.A. 27, 29 (1968) (citing Bonime).
More recent CBP rulings have adhered to this analysis. See HQ H158256, dated November 16, 2011. In HQ 958261, dated February 14, 1996, CBP further explained why the selvedge is disregarded by stating that:
Such selvage edges are anomalies to the material as a whole. Customs will disregard the appearance of the selvage when making a determination as to whether fabric as a whole is visibly coated for tariff classification purposes. Customs looks to that portion of the fabric that will actually be used in making the end product; to do otherwise would result in a misrepresentation of the intent of the fabric's producer. Surely, the manufacturer of this fabric did not intend for the blotchy selvage area to be visible when this fabric is incorporated into its finished product.
See HQ 958261.
Thus, in the present case, Moojin’s argument that its product is not completely coated or covered with plastics because the selvage is not covered or coated is contrary to well-established legal interpretation. The subject merchandise’s selvage may not be coated or covered in plastic to the degree to which the main fabric is, but neither will it be used in the finished signs, billboards, etc., that the main part of the fabric will be. Thus, in examining the subject merchandise to determine whether it meets the terms of Note 2(a)(3) to Chapter 59, HTSUS, we disregard the selvage and look at the main body of the fabric, excluding the selvedge.
In examining the samples of the subject merchandise that were submitted in conjunction with the Request for Internal Advice, we note that both samples are coated with plastic in such a way that is visible to the naked eye. In the case of the “Fox Banner 8 oz.,” the plastic coating and its sheen characterize the entirety of the sample. In the case of the “Fox Banner 12 oz.,” the plastic completely covers the textile, leaving none of the squares within the pattern open. The pattern of the textile weave is only visible beneath the plastic, because the plastic has been applied so tightly that it adopts that pattern. As such, the subject merchandise meets the exclusion of Note 2(a)(3) to Chapter 59, HTSUS, and is precluded from classification in heading 5903, HTSUS, because it is textile fabric that is entirely coated or covered on both sides with plastic that is visible to the naked eye. As a result, we examine classification outside heading 5903, HTSUS.
Note 2(a)(3) to Chapter 59, HTSUS, in excluding merchandise from heading 5903, HTSUS, directs classification into Chapter 39, HTSUS, the chapter for merchandise made of plastic. See also EN 59.03. In particular, heading 3921, HTSUS, provides for “other plates, sheets, film, foil and strip, of plastics.” Merchandise of this heading can be printed or otherwise surface-worked, uncut or cut into rectangles, including squares, but it cannot be further worked. See Note 10 to Chapter 39, HTSUS. Furthermore, the heading only covers cellular products or those which have been reinforced, laminated, supported or similarly combined with other materials. See EN 39.21.
Both types of the subject merchandise are predominantly plastic but are supported or otherwise combined with textile material. The samples of the subject merchandise received by this office have been cut into rectangles, but have not been further worked. As such, the subject merchandise meets the terms of heading 3921, HTSUS. By our calculations, based on the information on the submitted product specifications sheets, the “Fox Mesh Banner 8 oz.” consists of 63 percent plastic PVC and 37 percent fabric. The “Fox Banner 12 oz.” is composed of 75 percent plastic PVC and 25 percent fabric. Therefore, the subject “Fox Banner 12 oz.” meets the terms of subheading 3921.90.11, HTSUS, 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 subject “Fox Mesh Banner 8 oz.” meets the terms of subheading 3921.90.15, 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: Other.” This conclusion is consistent with prior CBP rulings that have classified laminated textile fabric for making indoor and outdoor signs in subheading 3921.90, HTSUS. See, e.g., HQ 963747, dated June 25, 2001; NY J84712, dated May 28, 2003; NY I89092, dated December 27, 2002; NY I89100, dated December 27, 2002; NY I89102, dated December 27, 2002; NY F86970, dated May 15, 2000; NY G82061, dated September 18, 2000; NY E87687, dated September 27, 1999.
HOLDING:
By application of GRI 1, both the subject “Fox Banner 12 oz.” and the subject “Fox Mesh Banner 8 oz.” are classified under heading 3921, HTSUS. The “Fox Banner 12 oz.” is specifically provided for under subheading 3921.90.11, HTSUS, 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 general, column one duty rate is 4.2%. The “Fox Mesh Banner 8 oz.” is specifically provided for under subheading 3921.90.15, 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: Other.” The general, column one duty rate is 6.5%.
You are to mail this decision to the internal advice requester no later than 60 days from the date of the decision. At that time, the Office of 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