NYRL 850983 affirmed. Drain board; plastic; textile;essential character

HQ 950114 August 4, 1992 CLA-2 CO:R:C:T 950114 HP CATEGORY: Classification TARIFF NO.: 5603.00.3000 Mr. James F. O'Hara Stein Shostak Shostak & O'Hara Suite 1240 3580 Wilshire Blvd. Los Angeles, CA 90010-2597 RE: NYRL 850983 affirmed. Drain board; plastic; textile; essential character Dear Mr. O'Hara: This is in reply to your letter of August 6, 1991. That letter concerned the tariff classification, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of drainage boards, produced in Korea. FACTS: The merchandise at issue, known as a KONY Drainboard, is described by you as follows: The merchandise consists of polyethylene plastic formed through thermal extrusion to which has been bonded man-made fibers [(in the form of a nonwoven material)] on each surface of the plastic material. As shown in the photographs attached as Exhibit 3, the plastic sheet with bonded man-made fibers is extruded in a wide form and thereafter slit into strip rolls having a width of 3.75 inches, as illustrated by the enclosed sample. In use, the drain board is inserted into the soil to extract excess or undesirable moisture. This is accomplished by the action of the plastic material which is porous, which draws moisture out of the soil and into the atmosphere where it evaporates. The porous and flexible nature of the plastic material indicates that it is cellular. The man-made fibers which are bonded to each surface of the plastic drain board material serve the purpose of reinforcing the plastic so that it can be driven into the soil with its tubular configuration remaining intact. The man-made fibers also act as a filter in preventing dirt and other debris from clogging the plastics material, thereby enhancing its efficiency. The data shown in Exhibit 4 indicates that the polyethylene plastic constitutes 50% of the total cost of the drain board and 85% of its material weight. In comparison, the man-made fibers constitute only 20% of the cost of the merchandise and 15% of the constituent weight of the merchandise. According to Customs Laboratory analysis, the drain board consists of a non-cellular polyethylene plastic sheet having a corrugated profile, which has been placed between two layers of olefinic nonwoven material. The plastic sheet comprises 83% by weight of the finished product. We are assuming for the purposes of this ruling that the drain board weighs less than 1.492 kg/m squared. The photographs incorporated in your submission show that (1) the raw material for the polyethylene plastic sheet is loaded into the thermal extrusion machine; (2) the plastic sheet emerges from the thermal extrusion machine; (3) two rolls of nonwoven material coated with polyethylene powder are loaded onto the laminating machine, one at the top and the other at the bottom; (4) the thermal extrusion machine is positioned so that the plastic sheet emerges and enters the laminating machine between the two sheets of nonwoven material; (5) the plastic sheet and the two nonwoven materials are thermally attached; and (6) the combined sheet is slit into 10 strip rolls. Visual examination reveals that while the nonwoven materials cover both surfaces of the plastic sheet, the interior portions of the corrugated ridges are not so covered. The National Import Specialist for this type of merchandise has informed us that the nonwoven textile fabric is actually laminated to both surfaces of the plastic sheet, rather than a bonding process taking place. Indeed, even your pictorial submission describes the process as a thermal lamination. In NYRL 850983 of April 18, 1990, this merchandise was classified under subheading 5603.00.3000, HTSUSA, as a nonwoven laminated with plastics. ISSUE: Whether the instant drain board is considered of plastics or of textiles for classification purposes under the HTSUSA? LAW AND ANALYSIS: Heading 3921, HTSUSA, provides for, inter alia, sheets of plastics combined with other materials. The General Rules of Interpretation (GRIs) to the HTSUSA govern the classification of goods in the tariff schedule. GRI 1 states, in pertinent part, that such classification shall be determined according to the terms of the headings and any relative section or chapter notes.... Goods which cannot be classified in accordance with GRI 1 are to be classified in accordance with subsequent GRIs, taken in order. Note 10 to Chapter 39, HTSUSA, states: In headings 3920 and 3921, the expression plates, sheets, film, foil and strip applies only to plates, sheets, film, foil and strip (other than those of chapter 54) and to blocks of regular geometric shape, whether or not printed or otherwise surface- worked, uncut or cut into rectangles (including squares) but not further worked (even if when so cut they become articles ready for use). The Explanatory Notes (EN) to the HTSUSA constitute the official interpretation of the tariff at the international level. While not legally binding, they do represent the considered views of classification experts of the Harmonized System Committee. It has therefore been the practice of the Customs Service to follow, whenever possible, the terms of the Explanatory Notes when interpreting the HTSUSA. The EN to heading 3921, HTSUSA, enumerates as allowable surface-working, inter alia, corrugation. Therefore, this merchandise is prima facie classifiable as plastic sheets. As we described above, the drain board is a plastic sheet combined with nonwoven textiles. The EN to this heading directs us to the General Explanatory Note to Chapter 39, HTSUSA, which states, inter alia: Plastics and textile combinations Wall or ceiling coverings which comply with Note 9 to this Chapter are classified in heading 39.18. Otherwise the classification of plastics and textile combinations is essentially governed by Note 1(h) to Section XI, Note 3 to Chapter 56 and Note 2 to Chapter 59. The following products are also covered by this Chapter: (a) Felt impregnated, coated, covered or laminated with plastics, containing 50% or less by weight of textile material or felt completely embedded in plastics; (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; (c) Textile fabrics, impregnated, coated, covered or laminated with plastics, which cannot, without fracturing, be bent manually around a cylinder of a diameter of 7mm, at a temperature between 15C and 30C; (d) Plates, sheets and strip of cellular plastics combined with textile fabrics, felt or nonwovens, where the textile is present merely for reinforcing purposes. As we stated above, the plastic sheet is of non-cellular construction. Option (d) therefore does not apply. The material does not fracture as required under Option (c). Options (b) and (a) clearly are not applicable. This merchandise is therefore not specifically included within Chapter 39, HTSUSA. Note 1(h) to Section XI, HTSUSA, excludes from classification therein, inter alia, nonwovens impregnated, coated, covered or laminated with plastics, or articles thereof, of Chapter 39. Note 2(l) to Chapter 39, HTSUSA, excludes goods of Section XI. While these notes appear to be contradictory, we have, however, determined them to be complementary. In HRL 088539 of June 6, 1991, we classified a textile/plastic golf glove, stating: Those notes [(Note 1(h) to Section XI and Note 2(l) to Chapter 39)] must be interpreted in conjunction with the provisions and notes of Chapter 59 [and 56], HTSUS, to determine whether fabrics [and nonwovens] that have been impregnated, coated, covered or laminated with plastics are goods of Section XI, or prohibited from classification in that section by Note 1(l) [sic.] of Chapter 39. Heading 5603, HTSUSA, provides for, inter alia, nonwovens impregnated, coated, covered or laminated with plastics. Note 3 to Chapter 56, HTSUSA, states, in pertinent part, that heading 5603 does not cover, inter alia, nonwovens, either completely embedded in plastics or rubber, or entirely coated or covered on both sides with such materials.... HRL 088539 continued by noting that the legal notes to Chapters 59 or 56, HTSUSA, set out definitive criteria for the determination of which merchandise is not classifiable in those chapters. Therefore, those nonwovens which are impregnated, coated, covered or laminated with plastics, and are excluded from classification by the legal notes to Chapters 59 or 56, are goods of Chapter 39. Alternatively, those nonwovens which are impregnated, coated, covered or laminated with plastics, and are not excluded from classification by the legal notes to Chapters 59 or 56, are goods of Section XI. Following the above rationale, the drain board would normally be classifiable in heading 5603, HTSUSA. The Explanatory Note to this heading, however, states that those nonwovens (which are prima facie classifiable in this heading) covered on one or both surfaces ... with sheets of any ... material are classified in this heading only if they derive their essential character from the nonwoven. The factors which determine essential character of an article will vary from case to case. It may be the nature of the materials or the components, its bulk, quantity, weight, value, or the role a material plays in relation to the use of the goods; however, an essential character analysis is not intended to be a mere numbers game. In general, essential character has been construed to mean the attribute which strongly marks or serves to distinguish what an article is; that which is indispensable to the structure or condition of an article. In your submission, at 2, you stated: In the event this merchandise is considered to be composite goods within the meaning of GRI 3(b), the data contained within Exhibit 4 [(quoted in the FACTS: section above)] with regard to relative value and weight of the man-made fiber and plastic material, as well as the demonstrated function and use of this merchandise, clearly demonstrate that the component of the drain board which gives it its essential character is the polyethylene plastic, not the reinforcing man-made fibers. Product literature submitted with your request states that while the plastic component is present for a drainage course, the nonwoven allows for permeability. Not only would the plastic channel portion be useless without the nonwoven (the channels would immediately fill with dirt), but the high permeability of the nonwoven is a major selling point; to wit: In conventional drain materials, the permeability, both crosswise and lengthwise decreases as the soil pressure increases with depth. This is particullary [(sic.)] a major problem to be solved in conventional fiber drain materials. In KONY Drain Boards, the problem is completely eliminated. KONY Drain Boards possess a permeability that is practically the same if the soil pressure is 6 KG/CM squared. Based upon the above statements, neither the plastic nor textile portions imparts the essential character to the drain board. Since the Explanatory Note specifically requires the essential character of the combination to be derived from the nonwoven for the article to be classified in heading 5603, HTSUSA, it is evident that this Note is intended to apply only where the essential character is clearly imparted by one material or another. Since it was not, and since we found above that this merchandise was classifiable in heading 5603, HTSUSA, classification therein was correct. NYRL 850983 is affirmed. HOLDING: As a result of the foregoing, the instant merchandise is classified under subheading 5603.00.3000, HTSUSA, textile category 223, as nonwovens, whether or not impregnated, coated, covered or laminated, other, laminated fabrics. The applicable rate of duty is 16 percent ad valorem. 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, to obtain the most current information available, we suggest that you 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 your 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, you should contact your local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements. Sincerely, John Durant, Director Commercial Rulings Division