HQ 955001: 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

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                   HQ 955001

                                 June 2, 1994

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

CATEGORY:  Classification

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.

FACTS:

      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.  

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) 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.

HOLDING:

      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.

                                    Sincerely,



                                    John Durant, Director