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HQ 955001

June 2, 1994

CLA-2 CO:R:C:F 955001 ALS


TARIFF NO.: 3921.90.1100 3921.90.1500

District Director of Customs
1000 2nd Ave.
Room 2200
Seattle, WA 98104

RE: Request for Further Review of Protest 3001-93-100544, dated August 11, 1993, Concerning a Woven Polyester Textile Fabric Completely Encased in Polyvinyl Chloride (PVC) Plastic, from Germany

Dear Mr. Hardy:

This ruling is on a protest that was filed against the decision issued by your office on May 14, 1993, in the liquidation of an entry covering the referenced product.


The articles under consideration are various styles of materials composed of woven polyester textile fabrics that have been completely encased with polyvinyl chloride (PVC) plastic.


What is the classification of the subject materials?


Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRI's) taken in order.
GRI 1 provides that the classification is determined first in accordance with the terms of the headings and any relative - 2 -
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 GRI's are applied, taken in order.

The classification is dependent on the percentage of the total weight of the combined polyvinyl chloride coated (PVC) plastic man-made material that is plastics. Subheading 3921.90.1100, 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 plastic combined with man-made textile fibers where the plastics form 70 percent or less of the total weight of the product. Thus the question to be resolved in each instance is whether or not the product is composed of over 70 percent by weight of plastics.

The importer states that all the materials under consideration contain in excess of 70 percent by weight of plastics. Information submitted by the manufacturer as to one style of the subject material indicates that such style is produced in 12 different colors and that in all cases the percent of PVC exceed 70 percent.

Customs laboratory analyses of the imported product does not confirm that the materials uniformly contain over 70 percent by weight of PVC. Samples of the styles of subject materials tested by the Customs laboratory indicated that the PVC content thereof was 70 percent or less of the total weight of the material. The Customs laboratory used tetrahydrofuran in a Soxhlet extraction apparatus to remove the PVC from the fabric in order to measure the weight of the base fabric and the plastics.

The importer indicates that the laboratory method of analysis is not accurate since the solvent does not remove all the plastic. We do not agree with that conclusion. Even if we were to assume that some residual plastic remains in the fabric, we do not believe that it would account for the 2 to 3 percent difference between the stated and found weights. Our finding confirm that there is a tolerance between the manufacturer's specification and the actual composition of the fabric.

In further regard to the claim that the Customs method of analysis is not accurate, the manufacturer and importer suggest that we measure uncoated fabric and the coated fabric and base our conclusions on such measurements. Since the classification of merchandise is based on its condition as imported, we find - 3 -
that this method of measurement is not satisfactory for the purpose of determining the tariff classification of the product. The importer suggests that a private laboratory has confirmed that the subject fabric contains over 70 percent by weight of PVC. In response to our request, the private laboratory submitted information as to its testing procedure. We note that such testing procedure was essentially the same as that utilized by Customs laboratories. We also note that the sample material tested by the private laboratory was fiberglass and not polyester which forms the textile base of the instant product. Thus it appears that any difference between the multiple findings of the Customs laboratories and the aforementioned private lab is due to the fact that two different products were being tested. Accordingly, we do not believe that the private laboratory's finding are relevant to the instant protest.

The manufacturer has provided information as to various colors of one style of the subject fabric but has not provided any specifics as to the method for determining same. The information indicates different PVC content for different colors of the same fabric. In three instances it also shows differing readings for the same colors. No explanation has been provided therefor. Based on our most recent analyses of the fabrics and other analyses of the same or similar fabrics, it appears that the manufacturer's specification are the optimal measurements for the coated fabric and its various components and that there is a certain tolerance inherent in these measurements, i.e., they are nominal measurements. It appears that because of this tolerance the relevant percentages of each component may vary between various fabrics and various samples of the same fabric. Thus, we do not believe that it is possible to conclude that the subject fabrics are uniformly composed of a certain percentage of PVC, either over 70 of the total coated fabric weight or 70 percent or less thereof.


Woven textile fabric composed of polyester man-made fibers encased or covered with PVC plastic is classifiable in subheading 3921.90.1100, HTSUSA, if it is composed of over 70 percent by weight of plastics. If it is composed of 70 percent or less by weight of plastics, it is classifiable in subheading 3921.90.1500, HTSUSA. If it is classifiable in the former subheading, the fabric is subject to a general rate of duty of 4.2 percent ad valorem. If classifiable in the latter subheading, the fabric is subject to a general rate of duty of - 4 -

8.5 percent ad valorem. If the fabric is classifiable in the latter subheading it falls within textile category designation 229 and requires an appropriate visa. We find that the instant PVC coated fabric is classifiable in subheading 3921.90.1500, HTSUSA, is subject to a general rate of duty as noted and to textile visa requirements.

Based on laboratory analyses of different styles of PVC coated fabric, we are unable to confirm that the subject fabrics will uniformly be classifiable in one or the other of the above-noted subheadings. Thus, in the absence of a change in the tolerance in the manufacturing process which will produce a PVC coated polyester fabric which is uniformly over 70 percent by weight of PVC, it will be necessary to make a factual determination as to such matter on an entry by entry basis.

Since the classification indicated above is the same as the classification under which the entry was liquidated, you are instructed to deny the protest in full.

A copy of this ruling should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

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 provided 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 this decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision of the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette subscription Service, Lexis, Freedom of Information Act and other public access channels.


John Durant, Director

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