3G Mermet Fabric Corp. v. United States

Slip Op. 01-28

United States Court of International Trade

3G MERMET FABRIC Corp.,

Plaintiff,
Before: Pogue, Judge
v.
Court No. 98-04-00669
UNITED STATES,

Defendant.

[Judgment entered for Plaintiff.]

Decided: March 13, 2001

DeKieffer & Horgan (J. Kevin Horgan) for Plaintiffs.

Stuart E. Schiffer, Acting Assistant Attorney General, Joseph I.
Liebman, Attorney-in-Charge, International Trade Field Office,
Bruce N. Stratvert, Attorney, Commercial Litigation Branch, Civil
Division, U.S. Department of Justice, for Defendant.

OPINION

Pogue, Judge: This case is before the court after trial de novo.

At issue is the proper tariff classification under 19 U.S.C. § 1202

(1988), Harmonized Tariff Schedule of the United States (“HTSUS”),

of 3G Mermet’s (“Plaintiff”) imported window shade fabrics. The

court has jurisdiction pursuant to 28 U.S.C. § 1581(a)(1994).

Background

In 1997, Plaintiff imported several varieties of window shade
fabrics: Satiné 5500, Natté 4500, E Screen 4100, Flocké 11201,1

Paradis 11600, and Auris 11190. The United States Customs Service

(“Customs”), upon liquidation, classified the window shade fabrics

as articles of glass fibers under subheadings 7019.59.40, HTSUS,

and 7019.59.90, HTSUS, thereby assessing a duty of 8 % and 9.9 % ad

valorem, respectively.2 Plaintiff claims the merchandise should

have been uniformly classified under subheading 3926.90.9890,

HTSUS, as “Other articles of plastics and articles of other

materials of headings 3901 to 3914: Other: Other . . . Other,” with

1
After the completion of trial, Customs, by motion,
attempted to enter into evidence a lab report on the composition
of the fabric Flocké. This motion is now moot, as the parties
have agreed to remand the Flocké fabric to Customs. As a result,
this opinion does not apply to the classification of Flocké.
2
Subheading 7019.59.40, HTSUS, in relevant part provides:

7019 Glass fibers (including glass wool) and
articles thereof (for example, yarn,
woven fabrics):
* * *
7019.59 Other: Not colored:
* * *
7019.59.40 Other

Subheading 7019.59.90, HTSUS, provides:

7019 Glass fibers (including glass wool) and
articles thereof (for example, yarn,
woven fabrics):
* * *
7019.59 Other: Colored:
* * *
7019.59.90 Other

2
a duty rate of 5.3 % ad valorem.3

The General Rules of Interpretation (“GRI”) of the HTSUS

govern the proper classification of merchandise. See Orlando Food

Corp. v. United States, 140 F.3d 1437, 1439 (Fed. Cir. 1998).

Classification involves a two-step process. The court is required

to: “(1) ascertain[] . . . the proper meaning of specific terms in

the tariff provision; and (2) determine[] . . . whether the

merchandise at issue comes within the description of such terms as

properly construed.” Sports Graphics, Inc. v. United States, 24

F.3d 1390, 1391 (Fed. Cir. 1994).

Customs and Plaintiff agree that the fabrics are composite

goods, prima facie classifiable in both chapter 39, as articles of

plastic, and chapter 70, as articles of glass fibers. See Revised

Pretrial Order, Schedule C, at ¶ 6. Each chapter refers to only

one of the materials used to produce the fabrics; as a result, the

parties agree that the analysis should not proceed under GRI 1 or

3(a). Rather, the parties debate whether the analysis should be in

accordance with GRI 3(b) or (c).4 GRI 3(b) allows composite goods,

3
The materials listed in headings 3901 to 3914, referred to
in subheading 3926.90.9890, HTSUS, include the plastic material
used in producing the window shade fabrics at issue.
4
General Rule of Interpretation 1 provides for
classification “according to the terms of the headings and any
relative section or chapter notes . . . .” GRI 1, HTSUS.

GRI 3 provides:

When, by application of rule 2(b) or for any other

3
not classifiable in accordance with GRI 3(a), to be classified as

if consisting of the material giving the good its essential

character. See GRI 3(b), HTSUS. Plaintiff argues that the window

shade fabrics are essentially articles of plastic, and should be

classified in chapter 39 pursuant to GRI 3(b). See Revised

Pretrial Order, Schedule C-1, at ¶ 1, Schedule D-1, at ¶ 1.

Customs, on the other hand, believes the goods should be classified

in accordance with GRI 3(c), which allows classification under the

heading occurring last in numerical order among those of equal

merit.5 See id. at Schedule C-2, at ¶ 3, Schedule D-2.

reason, goods are, prima facie, classifiable under two
or more headings, classification shall be effected as
follows:
(a) The heading which provides the most specific
description shall be preferred to headings providing a
more general description. However, when two or more
headings each refer to part only of the materials or
substances contained in mixed or composite goods or to
part only of the items in a set put up for retail sale,
those headings are to be regarded as equally specific in
relation to those goods, even if one of them gives a
more complete or precise description of the goods.
(b) Mixtures, composite goods consisting of
different materials or made up of different components,
and goods put up in sets for retail sale, which cannot
be classified by reference to 3(a), shall be classified
as if they consisted of the material or component which
gives them their essential character, insofar as this
criterion is applicable.
(c) When goods cannot be classified by reference to
3(a) or 3(b), they shall be classified under the heading
which occurs last in numerical order among those which
equally merit consideration.
5
Customs also argues that the classification of the window
shade fabrics in chapter 70 is in accordance with longstanding
administrative practice. See HQ 960345 (June 13, 1997), HQ

4
 The parties’ analyses, however, do not adequately reflect the

direction of the Explanatory Notes for chapter 39. See Harmonized

Commodity Description and Coding System, Explanatory Notes (2nd ed.

1996)(“Explanatory Notes”), at 598.6 These notes clarify the

chapter heading by defining what constitutes an article of plastic,

and apply to “combinations of plastics and materials other than

084721 (Aug. 24, 1989), and NY 837567 (March 9, 1989). In Mead
Corp. v. United States, 185 F.3d 1304 (Fed. Cir. 1999), cert.
granted, 120 S.Ct. 2193 (2000), the Federal Circuit held that
Chevron deference does not extend to “ordinary” or “typical”
Customs rulings. These rulings “do not involve such procedural
safeguards as public debate or discussion, are confined to
specific facts and parties to a particular transaction at issue,
and unlike regulations, are not intended to clarify the rights
and obligations of importers beyond the specific matter under
review.” Genesco Inc. v. United States, 24 CIT __, __, 102 F.
Supp. 2d 478, 482 (2000). Rather, Customs rulings should be
“‘entitled to respect,’ but only to the extent that they are
persuasive.” Id. at __, 102 F. Supp. 2d at 483. Whether this
court may be required to accord a higher degree of deference may
depend on the Supreme Court’s decision in Mead.
In any event, the rulings referred to by Customs here are
irrelevant. The rulings discuss the importance of the fiberglass
in maintaining strength, durability and resistance to bacteria
and tear. At trial, however, these characteristics were not
proven to be either crucial to or primarily dependent on the
fiberglass. Although the fiberglass does help to strengthen the
window shade fabric, it is through a reinforcing and supporting
function not addressed by the Customs rulings. Accordingly, the
Customs rulings are based on inapplicable factual findings.
Therefore, even were Mead to be reversed, the holding here would
not be affected.
6
While the Explanatory Notes “do not constitute controlling
legislative history,” Lonza, Inc. v. United States, 46 F.3d 1098,
1109 (Fed. Cir. 1995), they are instructive, offering “guidance
in interpreting HTS[US] subheadings.” Id. The Explanatory Notes
are especially persuasive “when they specifically include or
exclude an item from a tariff heading.” H.I.M./Fathom, Inc. v.
United States, 21 CIT 776, 779, 981 F. Supp. 610, 613 (1997).

5
textiles.”7 Id. If a good retains the essential character of an

article of plastic and fits within one of the subsections (a)

through (d), the good is classifiable under chapter 39 as an

article of plastic in accordance with GRI 1. See Orlando Food

Corp., 140 F.3d at 1440 (“According to GRI 1, the HTSUS headings,

as well as relative section or chapter notes, govern the

classification of a product.”). Thus, the issue for trial was

whether the window shade fabrics retain the essential character of

articles of plastic and meet the requirements of one of the

subsections (a) through (d) of the General Explanatory Notes to

chapter 39.8

7
The General Explanatory Notes to chapter 39 read, in
pertinent part:

This Chapter also covers the following products,
whether they have been obtained by a single operation
or by a number of successive operations provided that
they retain the essential character of articles of
plastics:
(a) Plates, sheets, etc., incorporating a
reinforcement or a supporting mesh of another material
(wire, glass fibres, etc.) embedded in the body of the
plastics.
* * *
(d) Products consisting of glass fibres or sheets
of paper, impregnated with plastics and compressed
together, provided they have a hard, rigid character.
* * *
The provisions of the preceding paragraph also apply,
mutatis mutandis, to monofilaments, rods, sticks,
profile shapes, tubes, pipes and hoses and articles.

Explanatory Notes, at 598.
8
Pursuant to 28 U.S.C. § 2639 (a)(1)(1994), Customs’ factual
determinations are presumed correct. See e.g., Salant Corp. v.

6
 Findings of Fact

The window shade fabrics at issue are used to produce exterior

and interior roller shades, vertical blinds and vellum blinds. See

Revised Pretrial Order, Schedule C, at ¶ 5. The fabrics are made

in France by Plaintiff’s parent company and then imported into the

United States. See id. at ¶ 1. Once the fabrics are in the United

States, Plaintiff sells them to window covering manufacturers, who

cut the fabric to dimension and “put it on the hardware to the

specification of the marketplace.” Trial Transcript, at 8.

A. Production Process

The materials are produced by one of two processes. See

Revised Pretrial Order, Schedule C, at ¶ 4. Three variations of

the window shade fabric, Satiné 5500, Natté 4500, and E Screen

4100, are woven from strands of yarn that are produced by coating

colorless glass fibers with variously colored PVC plastic prior to

weaving. See id. These window shade fabrics are made by taking a

fiberglass core and passing it through several PVC coatings. See

Trial Transcript, at 6. The individual PVC coated fiberglass yarns

United States, 24 CIT __, __, 86 F. Supp. 2d 1301, 1303 (2000);
Cf. Universal Elecs. Inc. v. United States, 112 F.3d 488, 492
(Fed. Cir. 1997)(holding that “although the presumption of
correctness applies to the ultimate classification decision . . .
the presumption caries no force as to questions of law”). To
overcome the presumption, the party challenging the
classification has the burden of proof and must produce a
preponderance of evidence on the disputed factual question. See
Universal Elecs. Inc., 112 F.3d at 492.

7
are then woven together. See id. After the weaving process, the

coated yarns are heated through a “tenturing” process.9 The heat

allows the coating of intersecting yarns to adhere to each other,

giving the fabric some stability. The difference between the

fabrics, such as Satinè and Nattè, is due to the size of the

monofilaments and the pattern resulting from the weaving

structure.10 See Trial Transcript, at 91.

The rest of the imported window shade fabrics -- Auris and

Paradis -- are produced by weaving strands of colorless glass

fibers into a mesh. See Revised Pretrial Order, Schedule C, at ¶

4. This mesh is then coated with either acrylic or PVC plastic.

As with Satinè, Nattè, and E Screen, the fabric is subjected to the

tenturing process.

The manufacturing process for Auris and Paradis results in

“sheets” of plastic. “Sheet” is defined as a “material in the form

9
This process is also known as chemofixation. See Trial
Transcript, at 89. The product is treated with heated air that
makes the PVC melt, allowing “every contact of the weft and the
warp to melt and to mix with each other.” Id. Then the fabric
is cooled. This results in the “welding of one plastic
monofilament to another plastic monofilament.” Id. According to
Laurent Mangeolle, the director of production, this process has
no impact on the fiberglass core material. Id. at 90.
10
A “monofilament” is a “single strand of untwisted
synthetic fiber” or “thin flexible threadlike object.” The
American Heritage Dictionary 1168(3rd ed. 1996)(“American
Heritage”). Because the fabrics contain individual coated yarns
that are untwisted, flexible, threadlike objects, Satinè, Nattè,
and E Screen are composed of plastic-coated fiberglass
monofilaments.

8
of a continuous stem covering or coating.” Trial Transcript, at

28. “Sheet” may also be defined as “a broad, thin, usually

rectangular mass or piece of material.” American Heritage 1661;

see also Sarne Handbags Corp. v. United States, 24 CIT __, __ 100

F. Supp. 2d 1126, 1136 (2000)(classifying a handbag with a plastic

outer surface as “Handbags . . . [w]ith outer surface of sheeting

of plastic”), Bradford Indus. v. United States, 152 F.3d 1339, 1340

(Fed. Cir. 1998)(referring to a non-woven textile dipped into

liquid polyurethane as composed of a polyurethane sheet attached to

a non-woven textile sheet). These two fabrics are formed by

dipping a mesh of glass fibers into plastic, producing a broad,

thin piece of material composed of a continuous coating of plastic.

See Trial Transcript, at 29.

As stipulated in the pretrial order, for all of these fabrics

the relative value and weight of the plastic is generally greater

than the value and weight of the fiberglass. See Revised Pretrial

Order, Schedule C, at ¶ 7. With the exception of Paradis, the

relative value of the plastic is at least sixty percent. Id. The

material composition of the window shade fabrics by weight is at

least ten percent more plastic than fiberglass, except for two

fabrics, Paradis and Auris. All of the fabrics’ thin, flexible

character is a result of the composition and manufacturing process

of the window shade fabrics.

9
B. Strength of Plastic and Fiberglass

Window shade fabrics need to be able to withstand a weight bar

and constant movement either up and down or back and forth over the

window. At trial it was demonstrated that neither plastic nor

fiberglass alone has the strength necessary for these functions.

Rather, manufacturers achieve the requisite strength by coating

some core material with plastic, thereby making a stronger good.

This core material serves two roles: it reinforces the plastic and

gives the plastic support.

A plastic window shade fabric with no core material can be

torn with relatively little trouble, as demonstrated by Dr.

McCluney at trial. See Trial Transcript, at 180. An uncoated

fiberglass window shade fabric would also fall apart easily.

Uncoated fiberglass is very brittle and can be easily manipulated.

Several witnesses at trial demonstrated the fragile nature of the

fiberglass. A light touch to an uncoated fiberglass weave causes

the material to come apart. Although fiberglass has a high tensile

strength, uncoated, the fibers rub against each other permitting

the fabric to break easily. Once the fiberglass is coated, it is

embedded in the plastic, preventing the fibers from rubbing against

each other.11 The embedded fiberglass helps to strengthen the

11
“To embed” a material means “[t]o fix firmly in a
surrounding mass; to enclose snugly or firmly; to cause to be an
integral part of a surrounding whole.” American Heritage 600.
The fiberglass is not visible upon viewing the fabrics. It is
completely surrounded by the plastic coating. See Trial

10
plastic.

Although a core material is indispensable in order for the

window shade fabrics to function, this material need not be

fiberglass. Fiberglass is not the only core material used in

similar fabrics in the window shade fabric industry. Several

samples of window shade fabrics produced by Plaintiff’s

competitors, largely using polyester cores coated with PVC, were

introduced at trial. According to Plaintiff’s production manager,

the core material could be a small metal wire or, presumably, even

plastic itself. See Trial Transcript, at 107-08. The ability to

substitute fiberglass with another core material demonstrates the

dispensability of fiberglass in window shade fabrics.

C. Function of the Window Shade Fabrics

The record at trial establishes that the principal concern of

Plaintiff’s customers is the control of solar radiation.12 See id.

Transcript, at 12. Because it is not possible to separate the
fiberglass and plastic once the plastic coats the fiberglass, the
fiberglass is an “integral part of a surrounding whole.”
American Heritage 600.
12
Generally, solar radiation is controlled by the solar
optical properties - radiance, transmittance, reflectance - of
the window shade fabrics. Besides the control of solar
radiation, Plaintiff’s customers are also concerned with outward
visibility. Outward visibility refers to the ability to see out
through the fabric, without others being able to see into the
building. See Trial Transcript, at 8. Outward visibility is a
function of the window shade fabrics’ openness factor. See page
14 below.

11
at 8, 18, and 185. Although the fabrics are also used for

decoration, meet minimum safety and fire resistance requirements,

and need to withstand continual opening and closing, on this

record, these functions are secondary. These secondary functions

merely help the performance of the primary function.13

Plaintiff’s sales brochures list the different fabrics and the

solar optical properties for the window shade fabrics according to

fabric type and color. See Plaintiff’s Ex. 2(a), 2(b), 2(c), and

4. The properties listed within the brochures include the solar

transmittance, reflectance, absorption and openness factor of the

window shade fabrics. See id. Some of Plaintiff’s customers are

concerned with the fabrics’ ability to reduce the glare for

computer screens See Trial Transcript, at 20. Others buy

13
Customs argues that all of the enumerated functions of the
window shade fabrics are primary functions. Customs’ expert
witness, Dr. McCluney, however, testified that it was his belief
that the primary function of the window shade fabrics at issue is
to control solar radiation. See Trial Transcript, at 185.
Although Dr. McCluney testified that window shade fabrics in
general also reflect interior electric illumination, and that
some consumers consider the appearance and color of the fabric to
be more important than any other aspect of the window shade
fabrics, he did not feel that either of these factors were
primary to Plaintiff’s customers. See id. at 211 (McCluney
testified that “in this particular product category, I believe
they are sold primarily for the solar radiation controlling
ability.”). Customs was, therefore, unable to rebut the evidence
introduced by Plaintiff on the secondary nature of these
functions.
Regardless, according to Timothy O’Grady, Plaintiff’s vice-
president and director of U.S. operations, the plastic, not
fiberglass, is responsible for most of the secondary functions of
window shade fabrics. See id. at 12.

12
Plaintiff’s fabrics to make their buildings more energy efficient.

See id. The marketing of the window shade fabrics reflects that

Plaintiff’s customers’ primary concern is the ability to control

light and heat, not the decorative or safety value of the window

shade fabric. Because the witnesses agreed in their testimony that

the window shade fabrics are marketed for their ability to control

solar radiation, much of the trial was devoted to Plaintiff’s and

Customs’ expert witnesses’ testimony about the different aspects of

solar radiation and how the elements of the fabrics relate to these

qualities.14

Both experts’ testimony established that there are three

important elements in controlling solar radiation: radiance,

transmittance, and reflectance. These elements are not necessarily

independent of another. Transmittance measures the amount of

energy that comes directly through a material. See Trial

Transcript, at 146-47. Reflectance, on the other hand, “is the

ability of a material to reflect back . . . light or . . . solar

energy.” Id. at 115. Together, transmittance and reflectance

affect absorption. Absorption refers to the amount of solar energy

absorbed into or reflected from the fabric. See id. at 147.

Radiance, transmittance, and reflectance are each a function

of the material, color, and weave of the window shade fabric.

14
Both Plaintiff’s expert witness, Mr. Tait, and Customs’
expert witness, Dr. McCluney, are experts in the field of solar
radiation.

13
Reflectance is primarily dependent on the color of the fabric. The

color of the window shade fabrics at issue is a result of pigments

in the plastic coating. Therefore, reflectance is a product of the

plastic coating and not the fiberglass core.

The openness factor, on the other hand, primarily affects the

transmittance of the product and visibility through the window

shade fabric. The openness factor is a product of the weave, with

minimal impact from the core material. Rather, it was determined

at trial that the plastic stabilizes the weave pattern.15 Because

plastic is important in maintaining a uniform weave, it plays a

significant role in preserving the openness factor, controlling the

level of transmittance.

The parties’ expert witnesses testified that the solar optical

properties of the window shade materials at issue are not a

function of the core material.16 None of the plastic coatings are

15
See, supra, note 9.
16
By motion, Customs tried to introduce new evidence after
trial. This evidence included letters from Plaintiff to Customs
describing fabrics similar to those at issue. Customs claims
that this evidence was not available prior to or during the trial
because of “an inadvertent copying glitch at Customs.” Stratvert
Decl., at ¶ 3. The Pretrial Order, however, provides that
exhibits and witnesses not identified in the Pretrial Order shall
not be considered “except upon prompt notice to all parties and
to the Court, and upon a showing of good cause.” Revised
Pretrial Order, at ¶ 11. Customs’ excuse of inadvertence does
not constitute good cause. Moreover, there is no inconsistency
between these letters and the facts and testimony in the record.
The letters discuss the role of fiberglass in window shade
fabrics with respect to functions this opinion considers
secondary. The primary function of the window shade fabrics in

14
clear; therefore, the coloring of the plastic coating, not the

color of the fiberglass, controls reflectance. The plastic also

determines the uniformity of the weave, thereby affecting

transmittance. According to Dr. McCluney, “the PVC is the

controlling factor for the optical properties[,]” in the fabrics at

issue. Trial Transcript, at 223. Mr. Tait likewise testified that

the core material had “very little” effect on the solar optical

properties of the fabric. Trial Transcript, at 122. Therefore,

the plastic, both acrylic and PVC, gives the window shade fabrics

their solar optical properties, which then determines the fabrics’

ability to control solar radiation, their essential function.

Conclusions of Law

The window shade fabrics must retain the essential character

of articles of plastic, in order to be classified within chapter

39. The “essential character” test is explained in National Hand

Tool Corp. v. United States, 16 CIT 308, 311 (1992). “Character”

is defined as “‘one of the essentials of structure, form,

materials, or function that together make up and usually

distinguish the individual.’” Id. (citing Webster’s Third New

International Dictionary (1981)). Whether the merchandise at issue

issue is the control of solar radiation, not flame retardance,
temperature resistance, or tear resistance. None of the
fiberglass functions addressed in the letters influences the
finding that the essential character of the window shade fabrics
is imparted by the plastic.

15
has the essential character of an article of plastic depends on

whether the qualities imparted by the plastic are indispensable to

the function of the article. See Better Home Plastics Corp. v.

United States, 20 CIT 221, 227, 916 F. Supp. 1265, 1269 (1996),

aff’d, 119 F.3d 969 (Fed. Cir. 1997)(“The court finds that, when

the indispensable function of keeping water inside the shower

enclosure, along with the protective, privacy and decorative

functions of the plastic liner are weighed against the decorative

function and the relative cost of the outer curtain, it is the

plastic liner that imparts the essential character upon the set.”).

The factors that determine essential character “vary as

between different kinds of goods.” Explanatory Notes, at 4.

Examples of such factors include the bulk, quantity, and weight of

a material, as well as the role of the material in relation to the

use of the product. See id. As previously noted, for the majority

of the window shade fabrics at issue the relative value and weight

of the plastic is greater than the fiberglass. See Revised

Pretrial Order, Schedule C, at ¶ 7; see also Findings of Fact,

supra at 9.

Not only does the plastic predominate by weight and value in

the fabrics, but the plastic components determine the solar optical

properties of the window shade fabrics. As we found above, the

plastic maintains the stability and uniformity of the weave

affecting the fabrics’ level of transmittance. The plastic coating

16
also affects the level of reflectance because the color pigments

are added to the plastic. Because the primary function of the

window shade fabrics is the control of solar radiation, and the

plastic elements determine these properties, the window shade

fabrics “retain the essential character of articles of plastic.”

Explanatory Notes, at 598.

The window shade fabrics, however, as goods that combine

plastic and another material, must also satisfy the requirements of

one of the subsections of the relevant General Explanatory Notes,

in order to be classified in chapter 39. Of the two relevant

subsections, (a) and (d), it is clear that the fabrics do not meet

the requirements of subsection (d). The window shade fabrics do

not have a hard, rigid character. See Findings of Fact, supra, at

9. As such, subsection (d) of the General Explanatory Notes to

chapter 39 cannot be used to classify the goods in the chapter.

Subsection (a), however, can be used to classify the goods in

chapter 39. Subsection (a) refers to “[p]lates, sheets, etc.”

Explanatory Notes, at 598. The General Explanatory Notes to

chapter 39 also conclude that “[t]he provisions of the proceeding

paragraphs apply, mutatis mutandis, to monofilaments, rods, sticks,

profile shapes, tubes, pipes and hoses and articles.” Id. Auris

and Paradis are “sheets” of plastic, thereby meeting this element

of the General Explanatory Notes. See Findings of Fact, supra, at

8-9. The remainder of the fabrics, Satinè, Nattè, and E screen,

17
consist of monofilaments of PVC with a fiberglass core. See id. at

8. Therefore, subsection (a) applies to all of the window shade

fabrics whether composed of sheets or monofilaments of plastic.

A second requirement of subsection (a) is that the “other”

non-plastic material in the sheets or monofilaments, in this case

fiberglass, must be “embedded” in the plastic.17 As discussed

above, because the fiberglass is fully encompassed in the plastic

and is an integral part of the surrounding whole, it is “embedded”

in the plastic.

Finally, subsection (a) requires the “other” material to have

only a supporting or reinforcing function. See Explanatory Notes,

at 598. If the function of the fiberglass is more than to

reinforce or support the fabric, the merchandise at issue is no

longer essentially an article of plastic in accordance with GRI 1.18

Our findings demonstrate the reinforcing and supporting nature

of the fiberglass. Uncoated fiberglass cannot control solar

radiation in a manner useful to Plaintiff’s customers. Rather, the

glass fibers help to “strengthen [the window shade fabric] by

17
“Glass Fibers” are explicitly enumerated as possible
reinforcing or supporting materials. Explanatory Notes, at
598.
18
To reinforce a good is “to give more force or
effectiveness to; to strengthen by adding extra support or
material.” American Heritage 1522. Support is defined as “to
bear the weight of; to hold in position so as to keep from
falling, sinking, or slipping; to keep from weakening or
failing; strengthen.” Id. at 1804.

18
adding extra material.” The fiberglass also supports the plastic,

providing a material to which the plastic can adhere, thereby

keeping the plastic from “falling, sinking or slipping.” By only

strengthening and supporting the plastic, the fiberglass performs

a necessary skeletal function without bearing upon the window shade

fabrics’ primary function, the control of solar radiation.

Conclusion

On the record in this case, the indispensable role of the

window shade fabrics is to control solar radiation. It is the

plastic material, not the fiberglass, that is essential to this

function. In addition, the plastic is of greater value and weight

than the fiberglass. The fiberglass merely supports and reinforces

the plastic, giving the fabric strength and durability. The

General Explanatory Notes for chapter 39 explicitly provide for

this type of good, a good where both components are necessary, but

one performs a primarily reinforcing and supporting function. As

these notes conclude, the mere presence of a fiberglass reinforcing

material does not preclude classification of the fabrics as

articles of plastic. Consequently, the window shade fabrics are

articles of plastic in accordance with GRI 1.

For the foregoing reasons, this court finds that the Plaintiff

has demonstrated that the window shade fabrics are properly

classifiable under subheading 3926.90.9890, HTSUS. Customs is

19
hereby ordered to reliquidate the subject merchandise under

subheading 3926.90.9890 and to refund all excess duties with

interest as provided by law.

Donald C. Pogue
Judge

Dated: March 13, 2001
New York, New York

20