CLA-2 OT:RR:CTF:TCM H256889 AS
Mr. Ameet Shah
Culp, Inc.
P.O. Box 2686
1823 Eastchester Drive
High Point, NC 27265
RE: Revocation of NY N216578; Tariff Classification of Coated Fabric
Dear Mr. Shah:
This is in response to your request for reconsideration, dated September 19, 2013, filed on your behalf by Alston & Bird LLP, requesting the reconsideration of New York Ruling Letter (NY) N216578, dated July 26, 2013, which classified coated fabric under the Harmonized Tariff Schedule of the United States (HTSUS). In NY N216578, dated July 26, 2013, CBP classified plastic coated textile upholstery fabric from China in subheading 5903.20.2500, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), 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”. Samples have been submitted to this office for examination. You advise that the samples do not need to be returned.
We have reviewed NY N216578 and found it to be incorrect. For the reasons set forth below, we hereby revoke NY N216578.
On June 24, 2015, pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI, notice of the proposed action was published in the Customs Bulletin, Vol. 49, No. 25. One comment was received in support of the notice. The commenter also advised that the correct date on the request for reconsideration was September 19, 2013. This has now been corrected.
FACTS:
The subject article, identified as fabric style “Cantina RL”, is described as a plastic coated upholstery material with a four layer construction. The top outer layer consists of compact polyurethane that has been printed and embossed to simulate leather. The second layer is cellular polyurethane. The third layer is a woven fabric of 70 percent polyester/30 percent cotton fibers. The backing layer is leather scrap that is flocked onto the textile fabric. The article is composed of: Polyurethane plastic (2 layers – 260 g/m2; Woven textile fabric – 168 g/m2; Leather scrap – 128 g/m2. Based upon the weight breakdown, this material is not over 70 percent by weight of rubber or plastics.
The CBP Laboratory Report, dated 4/23/2014, which tested the sample identified as “Cantina RL”, determined that this is a woven fabric that has been “ … coated, covered, impregnated, or laminated with two layers of polyurethane type plastic material on its outer surface and with composite leather on its inner surface. It weighs 505.4 grams per square meter. The two layers of polyurethane are composed of a top layer of compact application and a bottom layer of cellular application. The polyurethane layers weigh 241.0 grams per square meter. The woven fabric weighs 176.7 grams per square meter and the composite leather weighs 87.7 grams per square meter.”
ISSUE:
What is the proper classification for the merchandise?
LAW AND ANALYSIS:
Classification under the HTSUSA 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 heading and legal notes do not otherwise require, the remaining GRI may then be applied.
The HTSUSA provisions under consideration are as follows:
Other plates, sheets, film, foil and strip, of plastics:
Cellular:
Of polyurethanes:
Combined with textile materials:
Products with textile components in which
man-made fibers predominate by weight
over any other single textile fiber:
3921.13.1500 Other
Textile fabrics impregnated, coated, covered or laminated with
plastics other than those of heading 5902:
With Polyurethane:
Of man-made fibers:
Other:
5903.20.2500 Other
Note 2(p) to Chapter 39, HTSUS, states, in pertinent part, the following:
2. 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 1(h) to section XI, HTSUS provides:
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(a)(5) to Chapter 59, HTSUS, states in pertinent part, the following:
2. 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); …
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System 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 (August 23, 1989).
The general EN to Chapter 39, under the heading, “Plastics and textile combinations”, in part provides:
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.
You assert that the merchandise should be classified as a sheet of cellular polyurethane combined with a man-made fiber fabric, not over 70 percent by weight of plastics, under subheading 3921.13.1500, HTSUSA, which provides for “Other plates, sheets, film, foil and strip, of plastics: Cellular: Of polyurethanes: Combined with textile materials: Products with textile components in which man-made fibers predominate by weight over any other single textile fiber: Other”. You also argue that the cellular polyurethane plastic imparts the essential character of Cantina RL, while the thin layer of compact polyurethane provides a slight coloring effect, i.e., it is the cellular polyurethane that provides the “leather-like” quality to the article. Therefore, you conclude that because the cellular polyurethane plastic imparts the essential character to the product, and the textile fabric is present merely for reinforcing purposes, this product is excluded from heading 5903, per note 2(a)(5) to Chapter 59 which excludes “Plates, sheets or strip of cellular plastics combined with textile fabric, where the textile fabric is present merely for reinforcing purposes (chapter 39)”.
Although you raise an “essential character” analysis in your submission, we do not believe an “essential character” analysis is warranted in this instance. This article is classifiable pursuant to a GRI I analysis.
Note 2(p) to Chapter 39 states that Chapter 39 does not cover “goods of Section XI (textiles and textile articles)”. Therefore, our analysis begins with heading 5903, HTSUS.
Note 1(h) to Section XI, HTSUS, which includes Chapter 59, provides that Section XI, covering textiles and textile articles, does not cover "Woven, knitted, or crocheted fabrics, felt or nonwovens, impregnated, coated, covered or laminated with plastics, or articles thereof, of chapter 39." In order for the subject merchandise to be classified as a textile in heading 5903, it must first meet the terms of Note 2 to Chapter 59, HTSUS. However, under the terms of Note 2(a)(5), 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." In the CBP Laboratory Report it concluded, in pertinent part, that the merchandise consisted of two layers of polyurethane composed of a top layer of compact application and a bottom layer of cellular application. Since the merchandise is composed of cellular plastics, the issue that must be resolved is whether the woven textile fabric is present merely for reinforcing purposes.
We conclude that the textile fabric is present merely to reinforce the plastic. The subject article is comprised of four distinct layers, i.e., a top outer layer which consists of compact polyurethane (PU) that has been printed and embossed to simulate leather, a second layer of cellular PU, a third layer of woven fabric (70 percent polyester/30 percent cotton fibers), and a backing layer of leather scrap that is flocked onto the textile fabric. In fact, the woven fabric is “sandwiched” between two layers of polyurethane and having a backing layer of leather scrap that completely obscures the woven textile fabric. Clearly, the woven fabric is present merely for reinforcing purposes because it forms an interior layer and is completely obscured on both sides by the PU coatings and flocking. As such, the woven textile fabric serves to prevent the plastic from tearing or stretching. Therefore, we find that Note 2(a)(5) to Chapter 59, HTSUS, excludes the merchandise from heading 5903, HTSUS, and directs classification as an article of plastic of Chapter 39, HTSUS.
Merchandise of heading 3921, HTSUS, can be printed or otherwise surface-worked, uncut or cut into rectangles, but has not been further worked. As such, the subject merchandise meets the terms of heading 3921, HTSUS.
In view of the foregoing, CBP finds that NY 216578, dated July 26, 2013, incorrectly classified the subject merchandise as “Textile fabrics impregnated, coated, covered or laminated with plastics…” in heading 5903, HTSUS.
HOLDING:
By application of GRI’s 1 and 6, the subject merchandise is properly classified in heading 3921, HTSUS, specifically, subheading 3921.13.1500, HTSUSA, which provides for “Other plates, sheets, film, foil and strip, of plastics: Cellular: Of polyurethanes: Combined with textile materials: Products with textile components in which man-made fibers predominate by weight over any other single textile fiber: Other”. The column one, general rate of duty is 6.5 percent ad valorem.
Duty rates are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
EFFECT ON OTHER RULINGS:
NY N216578, dated July 26, 2013, is hereby REVOKED.
In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division