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HQ 963747




June 25, 2001

CLA-2 RR:CR:GC 963747 AML

CATEGORY: CLASSIFICATION

TARIFF NO.: 3921.90.1950

Port Director
U.S. Customs Service
P.O. Box 61905
Dallas/Fort Worth Airport, TX 75261

RE: Protests 5501-00-100009, 2704-99-103653, 2704-00-100380 and 2704-00-101079; Vinyl Coated Textile Fabrics (Tarpaulin Materials)

Dear Port Director:

The following is our decision regarding protest 5501-00-100009, concerning your classification of vinyl coated textile fabrics pursuant to the Harmonized Tariff Schedule of the United States (HTSUS). Also addressed are related protests filed at the Port of Los Angeles referenced above. Samples were provided for our examination. Consideration was given to arguments and demonstrative samples presented by counsel for the protestant at a meeting held at Customs Headquarters on March 23, 2001, as well as supplemental submissions made on March 22, and April 9, 2001.

FACTS:

The samples consist of tarpaulin type material used in making truck covers and similar barrier coverings, dividers, upholstery and signs and banners. Three representative samples were provided: PUG 1372, “hot white”; LAM1461, blue; KA 1961, black. They consist of polyester textile material covered completely on both sides with polyvinyl chloride (PVC) plastic, which may be embossed or smooth on their surfaces. They are identified by their weight in ounces per square yard and width of roll, which is the usual method of marketing the goods in the industry. The textile fabrics of the white PVC (13 oz., 72” wide) and blue PVC (14 oz., 61” wide) are of a warp and weft insert warp knit fabric, not of woven fabric as indicated in the submission. The black PVC (18.5 oz.,

61” wide) is of a plain, woven construction. All of the samples weigh less than 1.492 kilograms per meter squared (kg/m2).

In a related submission, the importer requests reconsideration of Headquarters Ruling Letter (HQ) 955343, issued to Value Vinyls, Inc., on October 12, 1994, which concerned similar merchandise. The articles were described in HQ 955343 as follows:

The products in question are a woven textile fabric, of a single polyester man-made fiber, that have been completely encased or covered on both sides with compact polyvinyl chloride (PVC) plastic. The two styles under consideration vary only slightly in their respective fabric's construction and their overall weight, 18 ounces and 22 ounces per square yard, respectively. These materials, subsequent to importation, are made up into tarpaulins for truck covers and the like.

In HQ 955343, Customs held that the articles were classifiable in subheading 3921.90.1950, HTSUS, based upon the holding in Semperit Industrial Products, Inc. v. United States, 18 CIT 578, 855 F. Supp. 1292 (1994). The Court of International Trade, in Semperit, considered the language of subheading 4010.19.15, HTSUS, which reads: "with 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 other than man-made fibers and that man-made fibers must be superior in weight for a product to be classifiable under such provision. Thus, in HQ 955343, we amended our interpretation of subheading 4010.19.15, HTSUS, and other subheadings containing the same language, including subheading 3921.90, HTSUS, and henceforth would construe such provisions in accordance with Semperit.

Customs Laboratory Report #5-1998-20988-001, dated October 22, 1998, analyzed the articles and concluded that:

[T]he sample, a plastic sheet, consists of two outer layers of white, noncellular, polyvinyl chloride type plastic completely covering man-made (polyester) textile fibers and weighs 0.444 kg/m2 (kilogram per meter squared). The sample is composed of 82% plastic and 18% textile fibers by weight.

The articles in protest 5501-00-100009 were entered between November 1998 and January 1999, and the entries were liquidated between October and December 1999. Protest 5501-00-100009 was filed on December 29, 1999. The articles in protest 2704-99-103653 were entered in November 1998 and liquidated in September 1999; protest 2704-99-103653 was filed on December 23, 1999. The articles in protest 2704-00-100380 were entered in January and February 1999 and were liquidated in December 1999 and January 2000; protest 2704-00-100380 was filed in February 4, 2000. The articles in protest 2704-00-101079 were entered between March and May 1999, and the entries were liquidated January through March 2000; protest 2704-00-101079 was filed on April 27, 2000.

ISSUE:

Whether the vinyl coated textile fabrics are classifiable under subheading 3921.90.11, HTSUS as 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; or under subheading 3921.90.1950, HTSUS, other, other, other?

LAW AND ANALYSIS:

Initially we note that the protests were timely filed (i.e., within 90 days after but not before the notices of liquidation; see 19 U.S.C. 1514 (c)(3)(A)) and the matters protested are protestable (see 1514 U.S.C. 1514 (a)(2) and (5)).

The protestant alleges that, based upon the legislative history of subheading 3921.90.11, HTSUS (and what it alleges to be predecessor provisions under the Tariff Schedules of the United States (TSUS)), and reliance upon the holding of the CIT in Semperit, supra, that the articles, which contain man-made fibers, must be classified under subheading 3921.90.11, HTSUS. The protestant repeatedly argues that the TSUS and HTSUS were drafted with the intention to distinguish between made-made and natural fibers. The HTSUS preserves this distinction and subdivides those articles by weight.

Further, the CIT interpreted identical language concerning similar articles in Semperit. “Legislative intent is, in fact, the lodestar of judicial decision.” S. Schwabacher & Co., Inc. v. United States, 22 CCPA 496, T.D. 47484 (1935). It is a primary function of the courts to determine legislative intent. Metal Goods Manufacturing Co v. United States, 46 CCPA 120, C.A.D. 712 (1959); United States v. S.H. Kress & Co., 46 CCPA 135, C.A.D. 716 (1959) (Sturm, Ruth; Customs Law & Administration, 3rd Edition, section 51.3, p. 33.) See also Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 n. 9 (1984) (noting that “[t]he judiciary is the final authority on issues of statutory construction” and that when a “court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention must be given effect”).

Semperit embodies the CIT’s interpretation of the tariff provision “predominates by weight” and obviates any other interpretation of the language contained in the subheading. To wit, the CIT held that the plain meaning of the phrase “predominates by weight over any other single fiber “ requires that there be a comparison of the man-made fiber contained in the article with another fiber. The Court found this to be the plain meaning of the provision and that absent clear legislative intent to the contrary, the plain meaning of the provision will prevail. No contrary legislative intent was found and we believe that the Court’s holding is unassailable. See Semperit at 110. The protestant argues that in accordance with Semperit (which states in its holding that its determination is based in part on the fact that no contrary legislative intent was evident), the legislative history to subheading 3921.19.11, HTSUS (embodied by heading 355.81, TSUS and headnote 2(c) to part 4C of schedule 3 of the TSUS) requires that Semperit’s interpretation of the “predominates by weight” language be ignored and that the vinyl be classified under subheading 3921.19.11, HTSUS. The protestant’s argument and exhaustive presentation of the legislative history of tariff treatment of man-made textile articles do not persuade us.

Classification of merchandise under the Harmonized Tariff Schedule of the United States (HTSUS) is governed by the General Rules of Interpretation (GRIs), taken in order. GRI 1 provides that the classification is determined first in accordance with the terms of the headings and any relative section and chapter notes. If GRI 1 fails to classify the goods and if the heading and legal notes do not otherwise require, the remaining GRIs are applied, taken in order.

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:
3921.90.19 Other.
3921.90.19.50 Other.

When interpreting and implementing the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, while neither legally binding nor dispositive, provide a guiding commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. Customs believes the ENs should always be consulted. See, T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The General Explanatory Note to Chapter 39, HTSUS, which concerns plastic and textile combinations, states in pertinent part, the following:

[T]he classification of plastics and textile combinations is essentially governed by...Note 3 to Chapter 56 [nonwovens]....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....

Note 3 to Chapter 56, HTSUS, which also deals with plastics and textile combinations, restates the aforementioned language in the General Explanatory Note to Chapter 39, HTSUS. Consequently, the subject merchandise is classifiable under Heading 3921, HTSUS, if: (1) the nonwoven textile portion is completely embedded in plastics; or (2) the nonwoven is visibly (with naked eye) coated on both sides with plastics. In this instance, the articles are visibly coated on both sides with plastics in accordance with Note 3 to Chapter 56, HTSUS, and the General Explanatory Note to Chapter 39, HTSUS. Therefore, the subject merchandise fits squarely within Heading 3921, HTSUS.

We note that the subject products are composed of a woven textile fabric, of a single polyester man-made fiber, that has been completely covered on both sides with compact polyvinyl chloride (PVC) plastic. We conclude that the Semperit decision above is applicable to the subject products. The court interpreted the statement "predominate by weight over any other single textile fiber" in regard to the HTSUS. The court determined that "the term ‘predominate'...clearly refers to man-made fibers which, in terms of weight and relative to any other single textile fiber, constitute the stronger, main, or leading element, or hold advantage in numbers or quantity." Semperit 18 CIT at 585; 855 F. Supp. at 1298. Thus, pursuant to Semperit, in order for subheading 3921.90.11, HTSUS, to be applicable, the subject merchandise would have to be comprised of man-made fiber and another textile fiber. Because the products at issue are made up of only man-made fiber, subheading 3921.90.11, HTSUS, is not the correct tariff provision. Accordingly, we conclude that neither subheading 3921.90.11, HTSUS, which the protestant claims to be the proper classification for its products, nor subheading 3921.90.15, HTSUS, under which the protestant’s products were previously classified, is, by operation of law, applicable thereto.

HOLDING:

Woven textile fabric composed of a single polyester man-made fiber covered on both sides with compact PVC plastic is classifiable in subheading 3921.90.19.50, 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: other, other.

The protests should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty (60) days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

EFFECT ON OTHER RULINGS:

HQ 955343 is hereby affirmed.

Sincerely,

John Durant, Director

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