CLA-2 RR:CR:TE 962467 jb
Port Director
US Customs Service
P.O. Box 619050
DFW Airport, Texas 75261
RE: Decision on Application for Further Review of Protest No. 550198100183; classification of peach skin fabric; demand for redelivery
Dear Sir:
This is a decision on an application for further review of a protest timely filed by Follick & Bessich, on behalf of Hi-Fashion Fabrics, Inc., against your classification decision with respect to merchandise referenced as “peach skin fabric” and your decision to demand redelivery of importations of that merchandise.
FACTS:
The subject merchandise, consisting of 100 percent polyester woven fabric, was entered by the Protestant in subheading 5407.61.9935, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), with an applicable quota/visa category of 619/620. The Protestant states that the finished fabric is subjected to a “buffing” process after it is made to give it a suede-like surface. The application of the buffing process after fabric formation causes breakage of many of the filament fibers, which give the appearance of staple fibers. In the Protestant’s opinion however, notwithstanding its appearance, the fabric remains one made wholly of filament fibers, and the buffing process applied after fabric formation does not change the fabric from one made from filament fibers to one made from staple fibers. Accordingly, the Protestant claims that Customs reclassification of this merchandise in subheading 5407.93.2090, HTSUSA, with a quota/visa category of 629, is in error.
With respect to the redelivery notice, the facts indicate that on December 22, 1997, the Protestant entered a shipment of polyester peach skin fabric under subheading 5407.61.9935, HTSUSA. On December 24, 1997, a Customs inspector examined the shipment and issued a CF 6423, Notice of Samples Retained, and a CF 4647, indicating that the goods were not properly marked. The inspector accepted the importer’s certification that the goods had been properly marked on January 16, 1998. Additionally, prior to the receipt of the importer’s certification that the goods had been properly marked, the samples obtained by the inspector were forwarded to the laboratory (December 29, 1997). A laboratory report was issued on July 29, 1998, indicating that the classification entered by the importer was incorrect and that the proper classification for the merchandise was in subheading 5407.93.2090, HTSUSA. Accordingly, as the entry did not have the correct visa, a notice of redelivery was issued on August 5, 1998.
ISSUE:
1. What is the proper classification for the subject merchandise?
2. Whether the August 5, 1998, Notice to Redeliver was timely?
LAW AND ANALYSIS:
Classification
Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRI's). GRI 1 requires that classification be determined according to the terms of the headings and any relative section or chapter notes, taken in order. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRI's will be applied, in the order of their appearance.
The subject merchandise consists of 100 percent polyester woven fabric. Subsequent to weaving, the fabric is further processed by way of what is referred to as “buffing”. This processing causes the filament yarn in the filling to cut, break, or otherwise separate on the surface of the fabric. The Protestant asserts that although the further processing of this fabric cuts, breaks, or otherwise separates some of the filament yarns, this does not change the character of the fabric. As such, the fabric remains woven fabric of synthetic filament yarn, albeit that some filament is cut, broken, or otherwise separated. In the opinion of the Protestant the fibers cut, broken or otherwise separated in the surface treatment of the fabric do not constitute staple fiber, as concluded by Customs.
When examined by the Customs laboratory, the following results were obtained:
The sample is a purple plain weave fabric, of yarns of different shades of purple, and is composed wholly of polyester fibers of which 66 percent are filament, and 34 percent are staple.
The sample has a tenacity of 18 centinewtons per tex, which does not meet the criteria for high tenacity yarn.
The sample has a weight of 187 grams per square meter.
Although no dispute exists between Customs and the Protestant regarding classification of this merchandise at the heading level, that is, that the merchandise consists of woven fabric of “synthetic filament yarn”, classifiable in heading 5407, HTSUS, there remains some question with respect to the appropriate subheading level for this merchandise. It is the opinion of Customs that the cutting, breaking, or otherwise separating of the filaments during the napping process converts the yarn into a staple fiber yarn. The Protestant claims however, that the cutting, breaking, or otherwise separating of filaments in the napping process does not convert the yarn into a staple fiber yarn, and that the merchandise should be classified at a subheading providing for 85 percent or more by weight of non-textured polyester filaments.
Section XI, Note 2(A) states:
Goods classifiable in chapters 50 to 55 or in heading 5809 or 5902 and of a mixture of two or more textile materials are to be classified as if consisting wholly of that one textile material which predominates by weight over each other single textile material.
* * *
The subject merchandise, in its buffed condition consists of 66 percent filament yarn and 34 percent staple fibers. As such, the textile material which predominates by weight is the polyester filament yarn. As such, there is no disagreement that the proper classification for the subject merchandise is in heading 5407, HTSUS, which provides for woven fabrics of synthetic filament yarn.
However, a determination must be made with respect to the appropriate subheading for this merchandise. It is a basis tenet of Customs law that classification of merchandise is based on its condition as imported. As such, a discussion of the proper subheading for this merchandise requires an examination of the subject merchandise in its napped condition. Simply stated, the issue is whether the changes to the filling yarns, as a result of the napping process, results in fibers characterized as staple fibers, irrespective of the fact that at the time of the weaving process of this fabric, the yarns used in the filling were filament yarns. The Explanatory Notes to the Harmonized Commodity Description and Coding System (EN) to chapter 55, HTSUS, state:
Man-made staple fibres are usually manufactured by extrusion through spinnerets (jets) having a large number of holes (sometimes several thousand); the filaments from a large number of spinnerets (jets) are then collected together in the form of a tow. This tow may be stretched and then cut into short lengths, either immediately or after having undergone various processes (washing, bleaching, dyeing, etc.) while in the tow form. The length into which the fibres are cut is usually between 25 mm and 180 mm and varies according to the particular man-made fibre concerned, the type of yarn to be manufactured and the nature of any other textile fibres with which they are to be mixed.
The EN to chapter 55 state “Man-made staple fibres are usually manufactured by extrusion through spinnerets...”, this statement in no way mandates the preclusion of all other manufacturing processes. This statement is simply illustrative of one of the manufacturing processes involved in producing staple fibers and should not be given a restrictive reading. The following lexicographic sources provide useful information with respect to a definition of “staple”:
Natural fibers or cut lengths from filaments. The staple length of natural fibers varies from less than 1 inch as with some cotton fibers to several feet for some hard fibers. Man-made staple fibers are cut to a definite length, from 8 inches down to about 1-1/2 inches (occasionally down to 1 inch), so that they can be processed on cotton, woolen, or worsted yarn spinning systems. The term staple (fiber) is used in the textile industry to distinguish natural or cut length man-made fibers from filament. Man-Made Fiber and Textile Dictionary, 1974, at 110;
Term used to indicate lengths of fiber that require spinning and twisting in the manufacture of yarn; man-made fibers that have been cut to a definite length, usually about one and one-half inches, but occasionally down to one inch. Generally done to produce a fiber that can be processed on the cotton and worsted systems.... Fairchild’s Dictionary of Textiles, 1970, at 556-557.
As previously stated, the terms of the EN are to be understood as a simple illustration of but one manufacturing process which yields staple fibers. Although the discontinuous polyester fibers in the subject fabric are not made as described in the EN to chapter 55, the discontinuous fiber does meet the physical description of the final product. Furthermore, as noted in the references stated above, the term “staple” is simply an indication of the cutting to specified short lengths to which the filaments are subjected. No specific manner by which the cutting procedure is undertaken is implied or should be inferred.
It is the opinion of this office that the polyester fibers in the filling yarns have been processed, i.e., cut by buffing, so that the fibers are short discontinuous fibers having the characteristics of staple fibers. Based on the Customs laboratory report, the subject fabric contains less than 85 percent by weight of synthetic filaments. Since in the condition as imported the polyester fibers in the filling yarns are in short lengths, and meet the physical description of “staple fibers”, the fabrics should be classified accordingly, that is, in subheading 5407.93.2090, HTSUSA. See also, HQ 961015, dated July 14, 1998; HQ 961081, HQ 961082, HQ 961083, HQ 961084, HQ 961085 dated July 27, 1998.
Notice to Redeliver
The documentation of record indicates that the pertinent dates are as follows: December 22, 1997 date of entry; December 24, 1997 CF 6423, Notice of Samples Retained is issued by Customs to the Protestant; December 24, 1997 Notice to Mark and/or Notice to Redeliver (this form, CF 4647, is usually referred to herein as “Notice to Redeliver”) issued by Customs to the Protestant, indicating that the merchandise on the subject entry was not properly marked; December 29, 1997 the samples obtained by the Customs inspector were forwarded to the Customs laboratory; January 16, 1998 the Customs inspector accepted the Protestant’s certification that the merchandise had been properly marked; July 29, 1998 the date of the Customs laboratory report (analysis by the Savannah and New Orleans laboratories); and August 5, 1998 the subject Notice to Redeliver was issued.
The August 5, 1998 Notice to Redeliver stated:
Laboratory analysis of this fabric has determined that it is composed wholly of polyester fibers which are 66% filament and 34% staple. The fabric is of yarns of different shades of purple and does not meet the criteria for high tenacity yarn. Based on these results we believe that the correct classification should be 5407.93.2090. Please provide a visa in category 629 omitting the description of high tenacity which was on the original visa or redeliver the goods to Customs custody within 30 days.
The Protestant claims that the Notice to Redeliver is “unreasonable, without authority in law or regulation, and is also in violation of 19 CFR 141.113(b), which sets forth a 180 day conditional release period for textiles and textile goods following said release.”
19 CFR 141.113(b) provides in pertinent part:
Textiles and textile products. For purposes of determining whether the country of origin of textiles and textile products subject to the provisions of §12.130 of this chapter has been accurately represented to Customs, the release from Customs custody of any such textile or textile product shall be deemed conditional during the 180 day period following the date of release.
We find that 19 CFR 141.113(b) does not provide a basis for relief for the Protestant. Such regulation pertains to the country of origin of textiles and textile products. The record indicates that on January 16, 1998 the Customs inspector accepted the Protestant’s certification that the merchandise had been properly marked. Thus, the country of origin marking of the merchandise is not at issue in this protest. Further with respect to country of origin marking, Customs acted 23 days after issuing a CF 4647 to the protestant on such issue, i.e., on January 16, 1998 the Customs inspector accepted the Protestant’s certification that the merchandise had been properly marked.
However, the inapplicability of 19 CFR 141.113(b) does not dispose of the entirety of the Protestant’s claim.
Section 141.113(c) provides:
Other merchandise not entitled to admission. If at any time after entry the port director finds that any merchandise contained in an importation is not entitled to admission into the commerce of the United States for any reason not enumerated in paragraph (a) or (b) of this section [relating to various marking and labeling requirements], he shall promptly demand the return to Customs custody of any such merchandise which has been released.
The documentation of record reflects that the Notice of Samples Retained of December 24, 1997 provided to the Protestant had a check mark in the box designated for “Retained as samples for official purposes.” One yard of fabric was taken. The record indicates that no further information was provided to the Protestant, i.e., the protestant was not informed that the fabric would be sent to the Customs laboratory for testing, nor was it informed that the conditional release period was extended during the time the laboratory analysis continued.
After a careful consideration of the evidence of record, and on the basis of the very limited information provided to the Protestant with respect to the sample retained, we conclude that the Notice to Redeliver of August 5, 1998 was not timely.
Accordingly, this claim of the Protestant is valid and the protest should be granted with respect to this claim.
HOLDING:
The subject peach skin fabric is properly classified in subheading 5407.93.2090, HTSUSA, which provides for woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404: other woven fabrics: of yarns of different colors: other: other: other: other. The applicable general column one rate of duty is 14.5 percent ad valorem and the quota category is 629. At the time of entry, the applicable general column one rate of duty was 15.5 percent ad valorem.
The protest should be denied in part, with respect to the classification, and granted in part, with respect to the timeliness of the notice to redeliver. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, 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 or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division