CLA-2 RR:TC:TE 957620 CMR

Port Director
U.S. Customs Service
200 St. Paul Place
Room: 28th Floor
Baltimore, MD 21202

RE: Protest with Application for Further Review, #1303-94-100336; Classification of conveyor belting; headings 5910 v. 3926

Dear Sir:

This is in response to a protest with an application for further review filed by Patton Boggs, L.L.P., on behalf of their client, Fenner, Inc., against the decision of Customs to classify various entries of conveyor belting in subheading 5910.00.1090, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as conveyor belting of textile material, whether or not reinforced with metal or other material. The protest, timely filed on November 9, 1994, covers 15 entries entered through the Port of Baltimore. Protestant seeks classification of the subject belting in subheading 3926.90.5900, HTSUSA, as plastic belting for machinery, containing textile fibers, other. Samples of the subject belting were submitted to this office for review.


The product at issue is described as "Fenaplast fire resistant PVC conveyor belting." Three samples of the conveyor belting have been submitted to this office--type 4500, type 8000 and type 6500. The belting consists of a woven textile fabric embedded in polyvinyl chloride (PVC) plastic. The textile fabric, referred to as a carcass, is generally woven with polyester and nylon yarns. The patented woven carcass, which serves as a reinforcing core, is immersed in PVC so that it is completely embedded within the plastic so that from external examination the belting appears to be made entirely of plastics. The belting is produced in a range of tensile strengths and corresponding thicknesses. In all cases, the weight of the PVC is about twice the weight of the textile fibers, if not more. -2-

The protestant also submits that the value of the PVC exceeds the value of the man-made fiber fabric.

The majority of this belting material is used in the coal industry, with the remainder used in mining operations, such as salt and potash. Such uses require the belting meet U.S. Mine Safety and Health Administration (MSHA) standards for fire resistance. The belting is imported wound on reels in lengths up to 1200 feet.


Is the subject belting material classified in heading 5910, as conveyor belting, of textile material, whether or not reinforced with metal or other material; or, is it classified in heading 3926, as an other article of plastics or article of other materials of headings 3901 to 3914; or, is it classified in heading 3921, as an other sheet of plastic?


Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRIs). GRI 1 provides that "classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to [the remaining GRIs taken in order]."

The protestant describes the belting as plastic belting with man-made fiber reinforcement. In classifying the belting in heading 5910, it is apparent Customs viewed the belting at liquidation as textile belting reinforced with plastic and so classified it.

The headings at issue are: heading 3921, which provides for other plates, sheets, film, foil and strip, of plastics; heading 3926, which provides for, among other things, other articles of plastics; and, heading 5910, which provides for transmission or conveyor belts or belting, of textile material, whether or not reinforced with metal or other material. On January 1, 1996, heading 5910 was amended to read: Transmission or conveyor belts or belting, of textile material, whether or not impregnated, coated, covered or laminated with plastics, or reinforced with metal or other material.

The essence of the argument by counsel for the importer for classification of the subject merchandise in heading 3926, HTSUSA, is that the plastic component of the belting imparts the essential character to the good. He argues classification based upon a GRI 3(b) analysis, i.e., classification based upon the -3-

component of the composite good that determines its essential character. We disagree with counsel regarding classification by GRI 3(b); we believe the classification may be determined under GRI 1.

In classifying this merchandise, we must apply all relevant section and chapter notes pursuant to GRI 1. Note 6, Chapter 59, states:

Heading 5910 does not apply to:

(a) Transmission or conveyor belting, of textile material, of a thickness of less than 3 mm; or

(b) Transmission or conveyor belts or belting of textile fabric impregnated, coated, covered or laminated with rubber or made from textile yarn or cord impregnated, coated, covered or sheathed with rubber (heading 4010). The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, the official interpretation of the tariff at the international level, offer some guidance in this matter. The EN for heading 5910 state in relevant part:

These transmission or conveyor belts or belting are used for the transmission of power or the conveyance of goods. They are usually woven or plaited from yarns of wool, cotton, man-made fibres, etc. They are in various widths and may be in the form of two or more plies of such material woven or bonded together; sometimes they are woven with a short looped pile surface or with corded edges. They may be impregnated with linseed oil, Stockholm tar, etc., and may be coated with varnish, red lead, etc., to counter deterioration caused by atmospheric conditions, acid fumes, etc.

This heading also includes belts and belting made from woven synthetic fibres, in particular polyamides, coated, covered or laminated with plastics.

* * *

[Emphasis added.]

Based upon the language of the heading, Note 6 of Chapter 59, and the accompanying EN, it would appear at first glance that heading 5910 describes the goods at issue. However, the tariff must be read as a whole and other relevant notes must be -4-

considered in determining if the conveyor belting at issue is classifiable in heading 5910 as conveyor belting of textile material reinforced with other material.

Heading 5910 is in Chapter 59 which is found in Section XI of the tariff. Note 1(h), Section XI, states: "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.

As the woven textile carcass (fabric) is impregnated with plastics, it is necessary to determine if the good is of chapter 39.

Note 2(l), Chapter 39, states: "This chapter does not cover: (l) Goods of section XI (textiles and textile articles)." The General EN to Chapter 39 contain a discussion regarding plastics and textile combinations. The EN state in relevant part:

* * * *, 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:

* * *

(b) Textile fabrics and nonwovens, 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 colour;

(c) Textile fabrics, impregnated, coated, covered or laminated with plastics, which cannot; without fracturing, be bent manually around a cylinder of a diameter of 7 mm, at a temperature between 15 C and 30 C;

* * *

Note 3, Chapter 56, covers felts and nonwoven fabrics, impregnated, coated, covered or laminated with plastics or rubber. The textile fabric used in the belting at issue is woven and thus, Note 3 is not relevant to our discussion. Note 2, Chapter 59, is specific to heading 5903. As heading 5903 is not a heading at issue, Note 2 is not applicable. Thus, we are left with Note 1(h) to Section XI and the relevant EN. -5-

Customs believes we cannot take a simplistic view toward classification of belts or belting in heading 5910 and construe the lack of limiting language in regard to the amount of plastics or other reinforcing materials which may be applied to the belting to mean there are no limits. The language of the heading itself imposes two limits, i.e., that the belts or belting be of textile material and, that other materials, in this case, plastics, are for reinforcement.

The General EN for Chapter 39, cited above, direct us to Note 1(h) of Section XI as the applicable legal note for determining the classification of this textile and plastic combination good. However, we must look to the EN for Chapter 39 in this case for guidance as to whether the textile and plastic good at issue is "of Chapter 39". The belting at issue meets the description in the General EN to Chapter 39, cited above, for textile and plastics combinations classified in Chapter 39 and therefore, Customs believes it is described in Note 1(h), Section XI, as a good excluded from classification in Section XI and thus excluded from Chapter 59. See, General EN, Chapter 39, Plastics and textile combinations, (b) and (c), at page 554. On this basis, the belting is classified in Chapter 39.

Counsel for the protestant advocates classification of the subject belting in heading 3926 as an other article of plastics. The EN for heading 3926 states in part:

This heading covers articles, not elsewhere specified or included, of plastics . . . .

They include: * * *

(7) Transmission, conveyor or elevator belts, endless, or cut to length and joined end to end, or fitted with fasteners.

* * *. In addition, this heading does not cover transmission or conveyor belts or belting, of textile material, impregnated, coated, covered or laminated with plastics (Section XI, e.g., heading 59.10).

[Underline added.]

The EN for heading 3921, an alternate heading under consideration, states in relevant 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, -6-

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.

Counsel for the protestant argues the belting belongs in heading 3926 in part because the tariff provides subheadings within heading 3926 which provide for belting and belts, for machinery, containing textile fibers. These subheadings appear at the eight digit national level of the tariff. It is a basic tenet of tariff classification that classification must begin at the four digit international heading level. If an item is not classifiable within the four digit heading, it is of no consequence what provisions may be inserted at the subheading levels. An item may not be classified at the subheading level if it is not classifiable within the heading.

It is Customs position that the belting is not classifiable in heading 3926. The belting at issue is imported in lengths up to 1200 feet, wound on reels. As imported, in material lengths, Customs believes the belting meets the description of plastic sheets in heading 3921. The EN for heading 3921 state that if further worked, plates, sheets, etc. are generally classified as articles and lists heading 3926 among those headings appropriate for the further worked items. But, as a plastic sheet, not further worked, the belting remains in heading 3921. See, HRL 084623 of August 28, 1989, modified by HRL 085702 of December 15, 1989; HRL 084137 of July 6, 1989; compare HRL 084766 of September 9, 1989.

We believe support for this distinction between the classification of plastic belting and plastic belts is supported by viewing the tariff as a whole. Of note, Section XVI, Note 1, excludes therefrom:


(a) Transmission, conveyor or elevator belts or belting, of plastics of chapter 39, . . . ; [and]

(e) Transmission or conveyor belts of textile material (heading 5910) . . . .

In addition, the EN for headings 8431 and 8485 specifically exclude transmission or conveyor belts or belting, of plastics (chapter 39), and transmission or conveyor belts or belting, of textile materials (heading 5910). In these exclusionary notes, when addressing transmission or conveyor belts or belting of textile materials, the text cites to heading 5910 which clearly covers finished belts and belting. However, when addressing transmission or conveyor belts or belting of plastics, the text cites to Chapter 39, not a single, specific heading. In our view, this supports the belief that belts and belting of plastics are not classifiable within the same heading, i.e., heading 3926, but are classified in different headings based upon the condition of advancement of the belting.

Finally, counsel cites to the Conversion of the Tariff Schedules of the Unites States Annotated Into the Nomenclature Structure of the Harmonized System, USITC Pub. 1400 (June 1983) and Continuity of Import and Export Trade Statistics After Implementation of the Harmonized Commodity Description and Coding System, USITC Pub. 2051 (January 1988), for support for his argument that the belting at issue is classified in heading 3926. These publications provide reference tables to correlate classifications under the Tariff Schedules of the United States Annotated (TSUSA) with classifications under the HTSUSA. Counsel states that under the TSUSA, the belting at issue was classifiable in item 358.16, TSUS. The USITC publications cross-references correlate item 358.16, TSUS with subheading 3926.90.5900, HTSUSA. The cross-reference for subheading 5910.00.0000, HTSUSA, did not list item 358.16 among its references.

In Marubeni America Corp. v. United States, Slip Op. 95-168, Ct. Int'l Trade, Decided October 3, 1995, the plaintiff in the case argued "Conversion Reports" published by the International Trade Commission supported his classification position. Relying upon the cross-reference tables in the report, plaintiff believed these reports showed a legislative intent of continuity of treatment of his goods from the TSUS to the HTSUS. The argument therein is similar to counsel's argument here. The two reports relied upon by counsel are "Conversion Reports".

The court in Marubeni rejected plaintiff's argument in regard to the "Conversion Reports". In doing so, the court stated: -8-

In sum, the Commission cautioned that notwithstanding its conversion analysis, the scope of a tariff term must still be derived from the traditional interpretive methodologies, including definitional notes and the common meaning of the terms used therein. While the conversion cross-reference may generally be a useful guide to classification for the Customs community, the court must agree with defendant that conversion cross-reference may not be a reliable guide where the HTSUS definition of a product is materially different from the TSUS definition.

It is Customs view that the language of the headings and the scheme of the tariff in regard to the classification of belts and belting differs significantly under the HTSUSA compared to that of the TSUSA so that reliance upon the conversion cross-reference tables is ill-advised.

For the above stated reasons, the belting at issue consisting of a man-made fiber carcass embedded in PVC is classified as an other sheet of plastics in heading 3921. The Court of International Trade's decision in Semperit Industrial Products, Inc. v. United States, 855 F.Supp. 1292 (CIT 1994), which involved the classification of industrial conveyor belts of vulcanized rubber and textile material, held that the term "predominate" requires the presence of at least two elements. As the textile component in the subject belting consists of only man-made fibers, only one textile element, the belting is classified in subheading 3921.90.2900, HTSUSA, which provides for, among other things, other plastic sheets, combined with textile materials and weighing more that 1.492 kg/m2, other.


Based upon the above analysis, the conveyor belting at issue is classifiable in subheading 3921.90.2900, HTSUSA, dutiable at 4.4 percent ad valorem.

You are instructed to deny the protest, except to the extent that reclassification of the merchandise as indicated above results in a net duty reduction and partial allowance. A copy of this decision should be attached to the Customs Form 19 which is returned to the protestant.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to customs -9-

personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.


John Durant, Director
Tariff Classification Appeals Division