CLA-2 OT:RR:CTF:TCM H192949 CkG
TARIFF NO: 6001.22.00
U.S. Customs and Border Protection
Port of Savannah
1 East Bay StreetSavannah, GA 31401
Attn: Anne Herche, Import Specialist
RE: Application for Further Review of Protest No. 1703-11-100473;
classification of printed fleece fabric
Dear Port Director,
This is in response to the Application for Further Review of Protest No. 1703-11-100473 filed on behalf of Springs Creative Products Group, LLC. (‘Protestant”), contesting Customs and Border Protection’s (CBP) classification and liquidation of printed fleece fabric in heading 6001 of the Harmonized Tariff Schedule of the United States (HTSUS), as a looped pile fabric.
At issue are bolts of printed, 100% polyester looped pile fleece fabric, imported in lengths of 8-10 yards per bolt, 58-60 inches wide, by Springs Creative Products Group, LLC. The fabric is wound around rectangular cores of corrugated paperboard. A representative sample of the fabric was submitted by the Protestant for examination by CBP.
The subject merchandise was entered between April 9, 2010, and February 14, 2011, in heading 6307, HTSUS, at the Port of Savannah. CBP liquidated the subject entries between April 22 and July 1, 2011, in heading 6001, HTSUS.
Whether the instant fabric is classified as looped pile fabric of heading 6001, HTSUS, or as a made up article of heading 6307, HTSUS?
LAW AND ANALYSIS:
Initially, we note that the matter is protestable under 19 U.S.C. §1514(a) (2) as a decision on classification. The protest was timely filed, within 180 days of liquidation of the first entry for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2) (B) (ii), (iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006)).
Further Review of Protest No. 1703-11-100473 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) because the decision against which the protest was filed is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise, specifically New York Ruling Letter (NY) L82625, dated February 18, 2005.
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The HTSUS provisions under consideration are as follows:
6001: Pile fabrics, including "long pile" fabrics and terry fabrics, knitted or crocheted:
Looped pile fabrics:
6001.22.00: Of man-made fibers (224)
* * * * *
6307: Other made up articles, including dress patterns:
6307.90.89 Surgical towels; cotton towels of pile or tufted construction;
pillow shells, of cotton; shells for quilts, eiderdowns, comforters and similar articles of cotton. . .
* * * * *
Note 7 to Section XI provides:
7. For the purposes of this section, the expression "made up" means:
(a) Cut otherwise than into squares or rectangles;
(b) Produced in the finished state, ready for use (or merely needing separation by cutting dividing threads) without sewing or other working (for example, certain dusters, towels, tablecloths, scarf squares, blankets);
(c) Cut to size and with at least one heat-sealed edge with a visibly tapered or compressed border and the other edges treated as described in any other subparagraph of this note, but excluding fabrics the cut edges of which have been prevented from unraveling by hot cutting or by other simple means;
(d) Hemmed or with rolled edges, or with a knotted fringe at any of the edges, but excluding fabrics the cut edges of which have been prevented from unraveling by whipping or by other simple means;
(e) Cut to size and having undergone a process of drawn thread work;
(f) Assembled by sewing, gumming or otherwise (other than piece goods consisting of two or more lengths of identical material joined end to end and piece goods composed of two or more textiles assembled in layers, whether or not padded); or
(g) Knitted or crocheted to shape, whether presented as separate items or in the form of a number of items in the length.
* * * * *
Note 8 to Section XI provides, in pertinent part:
For the purposes of chapters 50 to 60:
Chapters 50 to 55 and 60 and, except where the context otherwise requires, chapters 56 to 59, do not apply to goods made up within the meaning of note 7 above; and
* * * * *
Protestant claims classification of the Springs Creative fabric in heading 6307, HTSUS, as a made up article. The Port liquidated the instant merchandise in heading 6001, HTSUS, as a pile fabric, because the fleece fabric is not “made up” pursuant to Note 7 of Section XI.
To be properly classifiable under Heading 6307, HTSUS, a good must be "made up" pursuant to Note 7 to Section XI. Subpart (d) to Note 7 in particular requires that a "made up" good must be hemmed or feature rolled edges or a knotted fringe at any of the edges. However, heading 6307 excludes fabrics with cut edges which have been prevented from unraveling by whipping or by other simple means.
CBP has consistently held that for hemming to satisfy the requirement of Note 7 (d), the hemming must be present for a specific, utilitarian purpose and must be necessary for the intended use of the merchandise. See, e.g., Headquarters Ruling Letter (HQ) 083862, dated June 12, 1989; HQ 952650, dated June 8, 1993; HQ 959132, dated September 23, 1996; and HQ 960170, dated April 22, 1997. As noted in Note 7(d), the hemming must do more than just prevent the fabric from unraveling. For example, in HQ 083013, dated March 20, 1989, irrigation dam material made up of woven man-made fiber strips and featuring a lengthwise edge folded over itself and hemmed to create an 8 inch pocket along the entire length of the fabric, was determined to meet the criteria for "made up". The rationale was based on the fact that the hemming along the entire length of the fabric served a utilitarian purpose, that is, it created a pocket which allowed the insertion of a 2 inch by 4 inch piece of wood to hold the dam in place. On the other hand, in HQ 084144, dated July 19, 1989, a nylon woven fabric used for the manufacture of umbrellas, imported in material lengths and hemmed to prevent unraveling, was determined not to be "made up". The rationale was based on the fact that the hem did not serve a utilitarian purpose and did not dedicate the fabric for a particular use.
In the instant case, counsel argues that the hemming is not present merely to keep the fleece fabric from unraveling, because the fleece is heat-set, which already keeps the fabric from unraveling. However, counsel fails to note why the hemming is present at all. Indeed, an examination of the sample leads us to conclude that the hemming is not necessary for the intended use of the merchandise, nor is it present for any particular purpose.
An examination of the sample provided reveals that the hem is of poor construction. The stitching, contrary to counsel’s position, is not a type 406 stitch, nor is it durable. A Stitch type 406 is made with two needle threads and one looper thread. Loops of the needle threads are passed though the material and interlaced and interlooped with the looper thread. The visual appearance is that of two parallel lines of thread on the front surface of a fabric. On the underside of a fabric, the stitch looks like two parallel lines of thread connected by a series of “X”s. The stitching on the present fabric does not resemble a type 406 stitch; there is only one line of thread on the surface and underside of the fabric. In addition, the stitching is not durable; the thread can be easily pulled out and the sewn edges can easily be pulled apart. The thread on the sample in our possession was already unraveling upon receipt, meaning that it was unraveling without being subjected to any force or stress beyond normal transportation and handling. The stitching on the hem is also very uneven. The thread doesn’t fully pierce both sides of the folded fabric; part of one side of the folded-over edge of the fleece panel is not secured to the other side because the stitching on that side extends below the folded edge of the fabric. Leaving aside the matter of whether a type 406 stitch hem would satisfy the terms of note 7(d), the stitching at issue here does not, because it does not serve a utilitarian purpose or dedicate the fabric for a particular use.
Protestant also argues that the product is finished pursuant to Note 7(b) because it is sometimes sold and used in its condition as imported, i.e., by the bolt and not by yard. CBP has stated in prior rulings that "produced in the finished state, ready for use" refers to goods which basically are finished when removed from the loom or knitting machine, with relatively minor manipulations necessary to produce the end product. See HQ 955458, dated June 8, 1994, HQ 089592, dated September 20, 1991, and HQ 083171, dated December 15, 1989. The samples before us are not "finished". They are cut into squares and heat-set. While this prevents unraveling of the edges, it is considered a “simple means” of preventing unraveling pursuant to Note 7(d). In addition, this product is not particularly suitable for direct use in its condition as imported. First, as noted above, the poor quality of the hemming is not suitable for a children’s product. We also note that fabric wound around a rectangular core is the standard and usual form for fabric sold by the yard in retail stores. Finally, the edges of the fabric also contain printed product information (“CP38172 Snoopy Go Dog House © 2011 Peanuts for Springs Creative Products Group LLC. This product is sold for non-commercial home use only. Do not use for children’s sleepwear.”), that would be unsightly in a finished product, and would ordinarily be present only on a product tag rather than on the finished product.
In support of its argument that the instant fabric is a made up article of heading 6307, HTSUS, Protestant points to New York Ruling (NY) L82625, dated February 18, 2005, which classified a roll of fleece fabric in heading 6307, HTSUS. However, we note that the description of the merchandise in NY L82625 indicates a substantially more finished product than the one at issue in the present case. First, NY L82625 notes that the edges of the fabric are first held by an overlock stitch, and then the edges are hemmed. The fabric at issue in NY L82625 was therefore further processed than the instant merchandise, which features no stitching on the edges, and an incomplete hem.
By application of GRI 1, the instant fabric is classified in heading 6001, HTSUS, specifically subheading 6001.22.00, HTSUS, which provides for “Pile fabrics, including "long pile" fabrics and terry fabrics, knitted or crocheted: Looped pile fabrics: Of man-made fibers.” The 2011 column one, general rate of duty is 17.2% ad valorem.
You are instructed to deny the protest in full. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), 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 in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Myles B. Harmon, Director
Commercial and Trade Facilitation Division