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HQ 960345




June 13, 1997
CLA-2 RR:TC:TE 960345 jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 7019.40.9000; 7019.59.9000

Tim O'Grady
3G Mermet Corporation
5555 Fair Lane
Cincinnati, Ohio 45227

RE: Request for Reconsideration of HQ 084721 and NY 837567; classification of woven fabric consisting of yarns made with a fiber glass core coated with plastic material; GRI 3(c); heading 7019

Dear Mr. O'Grady:

This is in response to your letter, received by our New York office, dated February 19, 1997, requesting reconsideration of New York Ruling Letter (NY) 837567, dated March 9, 1989, and Headquarter Ruling Letter (HQ) 084721, dated August 24, 1989, which classified woven glass fiber fabrics in heading 7019, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample of the subject merchandise was submitted for examination.

FACTS:

We should first make note that the samples submitted cover a variety of style numbers which are intended either as interior and/or exterior shade systems, or contact fabrics for roller shade and/or vertical blind applications. We assume that although the style names/numbers may have changed since NY 837567 and HQ 084721 were issued, the composition of the merchandise is essentially the same as was addressed in those rulings. If this assumption is not correct this office should be contacted with the accurate details. Additionally, we bring to your attention that in NY 837567 a classification determination was not given for the products identified as "Thermoscreen material" because of insufficient information submitted at that time. Accordingly, this ruling will only address itself to the Thermoscreen material classified in HQ 084721.

The merchandise at issue in HQ 084721 addressed eight samples of woven glass fiber fabrics:

Each is a woven swatch of fabric which is composed of 73 percent plastics and 27 percent glass fibers (by both weight and value). Five samples are woven with a basket weave. The other three samples are made with a more complex weave which gives them a twill-like appearance. They are manufactured by coating a core of filament glass fibers with polyvinyl chloride (PVC), weaving, and then heat setting the fabric. The PVC coating which sheathes the glass fiber yarns is colored.... The fabrics will be imported in 98.4 inch widths.

Each of the styles is imported in a variety of color combinations. The Thermoscreen will be used as a sunscreen in a variety of indoor and outdoor applications including the manufacture of blinds.

In your opinion the subject merchandise is not classified in heading 7019, HTSUS, which provides for, glass fibers and articles thereof. You propose that the correct classification for the subject merchandise is in heading 3926, HTSUS, which provides for, other articles of plastics and articles of other materials of headings 3901 to 3914. In support of this claim you state that:

1. It is the "PVC" that provides the coloration, the ultra violet light protection and the long lasting appearance, durability, of the textile;

2. This product would not be possible without the "PVC" coating or similar "plastic compound", however, fiberglass can and is substituted as the support structure for other brands of similar textiles.

ISSUE:

Whether the subject merchandise is properly classified in heading 7019, HTSUS, which provides for, glass fibers and articles thereof, or in heading 3926, HTSUS, which provides for, other articles of plastics and articles of other materials of headings 3901 to 3914?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 requires that classification be determined according to the terms of the headings and any relative section or chapter notes. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRI's will be applied, in the order of their appearance.

We should point out, as you accurately stated in your submission, that the subject merchandise is not considered a textile man-made fiber. Chapter 54, HTSUS, provides for man-made filaments. Note 1 to chapter 54, HTSUS, defines the term "man-made fibers", in part, as staple fibers and filaments of organic polymers. As fiberglass is not a polymer but a mixture of inorganic compounds primarily composed of silicon dioxide, it is not a man-made fiber as per Note 1 to chapter 54, HTSUS.

The first step in the analysis of the classification of this product requires a characterization of the individual threads that compose this fabric. From this point we can determine whether the threads are man-made monofilaments and if the subject merchandise can be construed as a textile. Heading 5404, HTSUS, provides for synthetic monofilament of 67 decitex or more and of which no cross-sectional dimension exceeds 1mm; strip and the like (for example, artificial straw) of synthetic textile materials of an apparent width not exceeding 5mm. The Explanatory Notes to the Harmonized Commodity Description and Coding System (EN) to heading 5404, HTSUS, in defining "synthetic monofilament" state:

These are filaments extruded as single filaments. They are classified here only if they measure 67 decitex or more and do not exceed 1mm in any cross-sectional dimension. Monofilaments of this heading may be of any cross-sectional configuration and may be obtained not only by extrusion but by lamination or fusion.

The yarns in the subject merchandise are under 1 millimeter in cross section and the plastic material represents 73 percent by weight and value. In the opinion of this office the glass fibers coated with PVC are not produced by any of the methods explicitly stated in the note and as such, are not considered monofilaments. Further weight for this determination can be seen through the classification of textile yarns of headings 5404 and 5405, HTSUS, which when coated, covered or sheathed with rubber or plastics are precluded from classification as monofilaments and are classified in heading 5604, HTSUS (rubber thread and cord, textile covered; textile yarn, and strip and the like of heading 5404 or 5405, impregnated, coated, covered or sheathed with rubber or plastics). Furthermore, it is clear from the terms of heading 5604, HTSUS, that the fiberglass coated yarns are not products specified by that heading since the heading requires that the core be textile yarn or strip of headings 5404 or 5405. As the component yarns that make up this product cannot be construed as textile, we have exhausted the possibilities for classification of the subject article in the textile provisions.

The subject merchandise is made up of both plastic and fiberglass. General Rule of Interpretation 3 states:

(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a) shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

The EN for GRI 3(b) state that some of the factors that may be considered in determining which material provides the essential character to a composite good include bulk, quantity, weight, and the role of the material in relation to the use of the product. We do not dispute the fact that the PVC predominates by weight and value and that it provides a stabilizing mechanism for the open mesh. Additionally, the plastic can be colored more easily than the fiberglass and improves the ease of the weaving. However, the fiberglass also provides many characteristics to the product which are crucial to the use of this merchandise. These characteristics include strength, durability, and resistance to a variety of factors such as bacteria and tear as well as providing thermal resistance and flame retardancy. Thus, both the plastic and the fiberglass make the subject merchandise suitable for its intended purpose as an indoor and outdoor screen material.

Your assertion that a material other than fiberglass may be substituted for the fiberglass is without merit and does not prove that the essential character of this merchandise is imparted by the plastic. Although another fiber may be substituted for the fiberglass, the substituted fiber would be required to provide the merchandise with the same characteristics as the fiberglass and thus would still be at least, equally necessary to the composition and role of the merchandise.

As we cannot accurately determine a classification based on GRI 3(b), we proceed to GRI 3(c) which states:

When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.

There are three plausible headings for this merchandise, that is, headings 4601, 3926, and 7019, HTSUS. Heading 4601, HTSUS, provides for, among other things, plaits and similar products of plaiting materials, whether or not assembled into strips. This classification is precluded because only monofilaments or strips of plastics of chapter 39, HTSUS, qualify as plaiting material. Additionally, since the yarns that make up this product do not conform to the dimensional or structural requirements of plastic filaments or strip, this provision is precluded. Heading 3926, HTSUS, provides for, other articles of plastics and articles of other materials of headings 3901 to 3914. The EN to chapter 39, HTSUS, provide for, under "Combinations of plastics and materials other than textiles":

(d) Products consisting of glass fibres or sheets of paper, impregnated with plastics and compressed together, provided they have a hard, rigid character. (If having more the character of paper or articles of glass fibres they are classified in Chapter 48 or 70, as the case may be.)

The provisions of the preceding paragraph also apply, mutatis mutandis, to monofilaments, rods, sticks, profile shapes, tubes, pipes and hoses and articles.

The remaining provision meriting consideration is heading 7019, HTSUS, which provides for glass fibers and articles thereof. As we have already determined that no essential character may be determined for this merchandise and no new or pertinent information was submitted this office to rebut this classification, the merchandise remains classified in heading 7019, HTSUS.

The subject merchandise was properly classified in HQ 084721 in heading 7019, HTSUS. At the time HQ 084721 was issued, the tariff simply provided for "colored fabrics of glass fibers" in subheading 7019.20.5000, HTSUSA. Since that time, classification of this merchandise under the HTSUSA has been restructured to take into consideration the composition of the glass fibers. As information relating to the composition of the glass fibers was neither submitted at the time of the issuance of HQ 084721, nor with your request for reconsideration, we cannot provide you with a specific classification determination under heading 7019, HTSUS. The classification will differ depending on whether the woven fabrics are made of rovings, subheading 7019.40.9000, HTSUSA, or if not made of rovings, if the yarns are twisted, subheading 7019.59.9000, HTSUSA.

HOLDING:

The subject merchandise was properly classified in HQ 084721 in heading 7019, HTSUS.

If the subject merchandise is made of glass fiber rovings, the proper classification is subheading 7019.40.9000, HTSUSA, which provides for, glass fibers (including glass wool) and articles thereof (for example, yarn, woven fabrics): woven fabrics of rovings: other: colored: other. The applicable rate of duty is 9.9 percent ad valorem and the quota category is 622.

If the subject merchandise is made of glass fiber twisted yarns, the proper classification is subheading 7019.59.9000, HTSUSA, which provides for glass fibers (including glass wool) and articles thereof (for example, yarn, woven fabrics): other woven fabrics: other: colored: other. The applicable rate of duty is 9.9 percent ad valorem and the quota category is 622.

The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent negotiations and changes, we suggest that your client check, close to the time of shipment, the Status Report on Current Import Quotas (Restraint Levels), an issuance of the U.S. Customs Service which is updated weekly and is available at the local Customs office.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, your client should contact the local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director
Tariff Classification Appeals
Division

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