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HQ 956364




August 24, 1994

CLA-2 CO:R:C:T 956364 SK

CATEGORY: CLASSIFICATION

TARIFF NO.: 3921.90.1950

Joseph G. Witthohn tis USA
35 Meadow Street
Manchester, NH 103103

RE: Classification of vinyl coated textile fabrics (Tarpaulin Materials); Semperit Industrial Products, Inc. v. United States, Slip Op. 94-100 (Order June 14, 1994, amended order June 30, 1994).

Dear Mr. Witthohn:

This is in response to your letter of April 28, 1994, in which you request Customs to set forth the proper classification for coated tarpaulin material imported from the Czech Republic.

FACTS:

The material in question consists of two polyvinyl chloride (PVC) tarpaulin materials, each made of woven polyester fabrics that have been completely encased on both sides with a PVC plastic.

ISSUE:

What is the classification of the subject materials?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes, taken in order. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI's.

Classification of these types of products has historically been dependent on the percentage of the total weight of the combined PVC coated man-made material that is plastics. Subheading 3921.90.1100, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), provides for plastics combined with man-made textile fibers where the plastics form over 70 percent of the total weight of the product. Subheading 3921.90.1500, HTSUSA, provides for plastics combined with man-made textile fibers where the plastics form 70 percent or less of the total weight of the product. The question to be resolved in each instance is whether or not the product was composed of over 70 percent by weight of plastics.

A change in this analysis, however, was delineated by the court in Semperit Industrial Products, Inc. v. United States, Slip Op. 94-100 (Order June 14, 1994, amended order June 30, 1994). In Semperit, the court considered the language of subheading 4010.91.15, HTSUSA, which reads, "[W]ith textile components in which man-made fibers predominate by weight over any other single textile fiber... ." The court concluded that a product must contain more than one textile fiber and that man-made fibers must be superior in weight for a product to be classifiable under such provision. Thus, the interpretation of the aforementioned subheading and other subheadings containing the same language, including subheading 3921.90, HTSUSA, is, by operation of law, changed.

In light of such change, we have considered your request for a reconsideration of New York Ruling Letter 890966, dated November 22, 1993, as a request for a new ruling. In our consideration we noted that the subject products you import are composed of a woven textile fabric, of a single polyester man-made fiber, that has been completely encased or covered on both sides with compact PVC plastic. We have concluded that the above cited court case is applicable to the subject products. Accordingly, we have also concluded that subheading 3921.90.1500, HTSUSA, under which your products were previously classified, is, by operation of law, no longer applicable thereto.

HOLDING:

Woven textile fabric composed of a single polyester man-made fiber encased or covered on both sides with compact PVC plastic is classifiable under subheading 3921.90.1950, HTSUSA, which provides for, "[O]ther plates sheets, film, foil and strip, of
plastics: other: combined with textile materials and weighing not more than 1.492 kilograms per square meter: other... other...," dutiable at a rate of 5.3 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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