HQ 966601

February 5, 2004

CLA-2:RR:CR:TE 966601 SG

CATEGORY: Classification

TARIFF NO.: 3921.90.1950

Port Director

U.S. Customs and Border Protection

2nd and Chestnut Streets

Philadelphia, PA 19106

Re: Application for Further Review of Protest No. 1101-03-100207

Dear Sir:

This is in response to the Application for Further Review of Protest
Number 1101-03-100207 that you forwarded to our office for review. The
protest was timely filed by PricewaterhouseCoopers LLP, a licensed
Customs Broker, on behalf of Verseidag Indutex GMBH, against the
liquidation of certain textile/plastics material under subheading
5903.10.2500 of the Harmonized Tariff Schedule of the United States
Annotated (HTSUSA). The protest covers two entries.

FACTS:\
\
The protest covers two entries of merchandise imported through the Port
of Philadelphia. On June 23, 2003, the protestant entered one shipment
of Seemee Mesh Premium FR fabric. On October 7, 2002, the protestant
entered one shipment of Seemee Mesh Premium fabric, MMT Frontlit Premium
fabric, and MMT Backlit Premium fabric. The fabrics were imported into
the United States from Germany under subheading 5903.90.1500, HTSUSA,
the provision for \"Textile fabrics impregnated, coated, covered or
laminated with plastics, other than those of heading 5902: Other: Of
man-made fibers: Fabrics specified in note 9 to section XI: Over 60
percent by weight of plastics\", dutiable at 0.7 percent. On February
17, 2002, Customs and Border Protection (CBP) issued a CF 29 (Notice of
Action) advising the protestant that based on laboratory analysis, the
fabrics had been reclassified in subheading 5903.10.2500, HTSUSA, and
the entries were subject to a rate advance of 7.7 percent in 2002, and
7.6 percent in 2003. CBP liquidated the entries on March 28, 2003.

A protest was timely filed by the broker on June 25, 2003. It is claimed
that the merchandise at issue consists of textile fabric completely dip
coated in PVC, which is classifiable in heading 3921 as \"\[o\]ther
plates, sheets, film, foil and strip, of plastic.\"

Our decision on the protest follows.

FACTS:

CBP Laboratories and Scientific Services analyzed a sample described as
\"Seemee Frontlit Supreme\". Laboratory report number SV20022065 states
the following regarding the sample: (1) fabric is coated with PVC, (2)
fabric is plain woven, (3) fabric is wholly of polyester filaments, (4)
fabric is not of a type specified in Note 9 to Section XI, HTSUSA, (5)
it is non-cellular, (6) it weighs approximately 441 grams per square
meter, and (7) it is not over 60 percent by weight of plastic. The
analyst\'s notes indicate the \'presence\' of coating on both sides of
the woven fabric.

Protestant describes the three articles under consideration and their
production processes as follows:

The Seemee products are comprised of polyester woven fabric (or
\"scrim\"), which is coated or covered with polyvinylchloride (\"PVC\").
The products are produced as follows: (1) polyester fabric is sent
through a rolling machine; (2) the fabric is dipped in PVC; (3) the
dip-coated fabric is oven-dried; and finally (4) an acrylic topcoat is
applied.

We are advised that the products are imported in rolls or bolts.\
\
ISSUE:\
\
Whether woven textile fabrics of polyester that are covered with a
polyvinyl chloride coating (plastic) are classified in heading 5903,
HTSUSA, as a plastic coated fabric.\
\
LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General
Rules of Interpretation (GRI's). 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 headings and legal notes do not otherwise require, the
remaining GRI may then be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes
(EN's) represent the official interpretation of the Harmonized System at
the international level (for the 4 digit headings and the 6 digit
subheadings) and facilitate classification under the HTSUSA by offering
guidance in understanding the scope of the headings and GRI. The EN's,
although not dispositive or legally binding, provide a commentary on the
scope of each heading of the HTSUSA, and are generally indicative of the
proper interpretation of these headings.\
\
Legal Note 2(a)(3) to Chapter 59, HTSUSA, states that 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: \* \* \* (3) Products
in which the textile fabric is either completely embedded in plastic 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 resultant change in color (chapter 39).\
\
The intent of Note 2(a)(3) to Chapter 59 is to classify those products
\"embedded in\" or \"completely covered\" with plastics under the
headings that provide for plastics or articles of plastics because they
have acquired the characteristics of plastics. See

HQ 963614, dated May 16, 2002 (classifying a warning vest made from PVC
dipped polyester fiber mesh fabric in Chapter 39).

Legal Note 1 to Chapter 59, HTSUSA, states:

Except where the context otherwise requires, for the purposes of this
chapter the expression \"[textile fabrics]{.underline}\" applies only to
the woven fabrics of chapters 50 to 55 and headings 5803 and 5806, the
braids and ornamental trimmings in the piece of heading 5808 and the
knitted and crocheted fabrics of heading 6002 to 6006.

The samples under consideration were examined and determined to be woven
polyester products, which meet the definition of a \"textile fabric\" as
defined in Note 1. Further examination has determined that all three
samples are entirely coated or covered on all sides with plastics, and
that the plastic coating on both sides of the textile fabrics is visible
to the naked eye. Accordingly, pursuant to Note 2(a)(3) to Chapter 59,
these materials are excluded from classification in Chapter 59, HTSUSA.

The materials before us are considered goods of plastics and are
classified in Chapter 39, HTSUS. Heading 3921 covers \"\[o\]ther plates,
sheets, film, foil and strip, of plastic.\" A review of the subheadings
of 3921 reveals the scope of this heading includes plastic, plate,
sheet, film, foil and strip which is \"\[c\]ombined with textile
material.\" The merchandise at issue consists of textile fabric
completely dip coated in PVC. Accordingly, the merchandise is
classifiable in Heading 3921 as \"\[o\]ther plates, sheets, film, foil
and strip, of plastic.\" The materials at issue in these protests are
non-cellular, and weigh approximately .441 kilograms per square meter.
At the subheading level, each of the three materials subject of this
protest are classified in subheading 3921.90.1950, HTSUSA, as an other
sheet of plastics, combined with a single textile material, and weighing
not more than 1.492kg/m squared.

HOLDING:

The protest should be ALLOWED.

Woven textile fabric composed of a single polyester man-made fiber
covered on both sides with PVC plastic is classifiable in subheading
3921.90.1950, HTSUSA, 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. Merchandise imported
under this subheading is dutiable at the rate of 5.3 percent ad
valorem.\
\
In accordance with the Protest/Petititon Processing handbook (CIS HB,
January 2002, pp.18 and 21), 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 in accordance
with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of this decision, the Office of Regulations and
Rulings will make the decision available to CBP personnel, and to the
public on the CBP Home Page on the World Wide Web at www.cpb.gov, by
means of the Freedom of Information Act, and other methods of public
distribution.

Sincerely,

Myles B. Harmon, Director

Commercial Rulings Division