OT:RR:CTF:FTM H314080 PJG
Center Director
Apparel, Footwear and Textiles
Center of Excellence and Expertise (CEE), Team 054
237 West Service Road
Champlain, New York 12919
Attn: Kathleen A. Cheney, Supervisory Import Specialist
RE: Application for Further Review of Protest No. 4601-2012-0178; Section 301 Measures; Subheading 9903.88.03, HTSUS; Tariff classification of certain impregnated, coated, covered, or laminated textile fabrics
Dear Center Director:
This is in reference to the Application for Further Review (“AFR”) of
Protest No. 4601-2012-0178, timely filed on August 26, 2020, by The Obert Law Firm, P.L.L.C. on behalf of their client, Nassimi, LLC (“Nassimi” or “Protestant”). Nassimi is protesting applicability of U.S. note 20(ll)(18) to Chapter 99, HTSUS, to seventeen styles of impregnated, coated, covered or laminated textile fabrics. U.S. note 20(ll)(18) to Chapter 99, HTSUS, is an exclusion to Section 301 of the Trade Act of 1974 (“Section 301”) issued by the U.S. Trade Representative (“USTR”). This decision addresses the proper classification of the merchandise under the Harmonized Tariff Schedule of the United States (“HTSUS”) and the applicability of the exclusion order to the subject seventeen textile fabrics.
FACTS:
The seventeen styles of textile fabrics that are subject to this AFR are as follows: Austen; Beckett; Capote; Channel; Clarke; Hemingway; Huxley; Instill; Kipling; Parker; Playmat; Prompt; Salinger; Tolstoy; Twain; Vibe II; and Wilde.
The Protestant describes the products as “fabrics of man-made micro-denier fibers impregnated, coated, covered, or laminated with polyurethane, of a width of at least 135 cm but no more than 150 cm, weighing at least 206 g/m2 but not more than 500 g/m2.” Moreover, the Protestant claims that the fabrics are: “(1) man-made (either 100% polyester or predominantly polyester by weight)…and (2) are less than 70 percent by weight of rubber or plastics.”
The protest involves five entries of the subject textile fabrics, which were entered on December 18, 2018, January 15, 2019, February 13, 2019, February 27, 2019, and March 6, 2019. The first two entries were liquidated on March 9, 2020, and the last three entries were liquidated on April 3, 2020. At the time of entry summary, the subject merchandise was classified in subheading 5903.20.15, HTSUS, which provides for “Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902: With polyurethane: Of man-made fibers: Fabrics specified in note 9 to section XI: Over 60 percent by weight of plastics.” U.S Customs and Border Protection (“CBP”) liquidated the entries for these products under heading 5903, HTSUS, and specifically in subheading 5903.20.25, HTSUS, which provides for “Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902: With polyurethane: Of man-made fibers: Other: Other.” Products classified under subheading 5903.20.25, HTSUS, are subject to the additional duties imposed by Section 301 in subheading 9903.88.03, HTSUS. Subheading 9903.88.03, HTSUS, provides for “Except as provided in headings 9903.88.13, 9903.88.18, 9903.88.33, 9903.88.34, 9903.88.35, 9903.88.36, 9903.88.37, 9903.88.38, 9903.88.40, 9903.88.41, 9903.8843, 9903.88.45, 9903.88.46, 9903.88.48, 9903.88.56, 9903.88.64, 9903.88.66 or 9903.88.67, articles the product of China, as provided for in U.S. note 20(e) to this subchapter and as provided for in the subheadings enumerated in U.S. note 20(f).” The subject protest was filed on August 26, 2020.
In its protest, the Protestant agrees with CBP that the fabrics are classified under subheading 5903.20.25, HTSUS. Protestant claims that the fabrics are excluded from the Section 301 duties imposed by subheading 9903.88.03, HTSUS, because the fabrics are provided for in subheading 9903.88.33, HTSUS, which provides for “Articles the product of China, as provided for in U.S. note 20(ll) to this subchapter, each covered by an exclusion granted by the U.S. Trade Representative.” Specifically, the Protestant alleges that the subject merchandise is not subject to the additional duties provided for in subheading 9903.88.03, HTSUS, because the merchandise fits the description of U.S. note 20(ll)(18) to Chapter 99, HTSUS, which provides for “[f]abrics of man-made micro-denier fibers impregnated, coated, covered, or laminated with polyurethane, of a width of at least 135 cm but not more than 150 cm, weighing at least 206 g/m2 but not more than 500 g/m2 (described in statistical reporting number 5903.20.2500).”
The CBP Laboratories and Scientific Services Directorate (“CBP laboratory”) analyzed samples of the subject fabrics. The CBP laboratory determined that the Wilde and Playmat samples were woven textile that were impregnated, coated, covered or laminated with cellular polyurethane material. The remainder of the samples were determined to be warp knit brushed fabric impregnated, coated, covered or laminated with cellular polyurethane material. The textile fabrics were determined to be composed wholly or predominantly of polyester, which is a man-made fiber. All the samples were impregnated, coated, covered or laminated with the cellular polyurethane material on one side of the fabric, except for the Twain, Prompt, Beckett, Vibe II, and Instill style fabrics, which were determined to be impregnated, coated, covered or laminated with two layers of cellular polyurethane material .
ISSUE:
Whether the subject impregnated, coated, covered, or laminated textile fabrics are “[f]abrics of man-made micro-denier fibers,” as specified in the Section 301 Exclusion Order granted by USTR and provided for in U.S. note 20(ll)(18) to Chapter 99, HTSUS.
LAW AND ANALYSIS:
Initially, we note that this 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. See 19 U.S.C.
§ 1514(c)(3).
Protestant alleges that Further Review of Protest No. 4601-2012-0178 should be accorded pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of CBP or his designee or by the Customs courts. Specifically, CBP and the Customs courts have not ruled as to whether the subject fabrics are within the scope of a particular Section 301 Exclusion Order as “micro-denier fabrics.” We find that Further Review of Protest No. 4601-2012-0178 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(b).
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI”). GRI 1 provides that the classification of goods 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 GRI may then be applied.
The 2018 HTSUS provisions under consideration are as follows:
5903 Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902:
* * *
5903.20 With polyurethane:
* * *
Of man-made fibers:
Fabrics specified in note 9 to section XI:
5903.20.15 Over 60 percent by weight of plastics
* * *
Other:
* * *
5903.20.25 Other
While at the time of entry summary, the Protestant classified the subject merchandise in subheading 5903.20.15, HTSUS, in the protest and AFR, the Protestant does not dispute CBP’s subsequent classification of the merchandise in subheading 5903.20.25, HTSUS, which provides for “Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902: With polyurethane: Of man-made fibers: Fabrics specified in note 9 to section XI: Other: Other.” The Protestant disputes the applicability of the Section 301 duties in subheading 9903.88.03, HTSUS, which is applicable to products classified in subheading 5903.20.25, HTSUS. The Protestant contends that the subject seventeen styles are excluded from the Section 301 duties because they fit the description provided for in U.S. note 20(ll)(18) to Chapter 99, HTSUS, which states “[f]abrics of man-made micro-denier fibers impregnated, coated, covered, or laminated with polyurethane, of a width of at least 135 cm but not more than 150 cm, weighing at least 206 g/m2 but not more than 500 g/m2 (described in statistical reporting number 5903.20.2500).”
To meet the exclusion to Section 301 provided for in U.S. note 20(ll)(18) to Chapter 99, HTSUS, the products must be “[f]abrics of man-made micro-denier fibers.” The term “micro-denier” is not defined by the legal notes, the Explanatory Notes (“ENs”), or in previously issued CBP rulings. “When…a tariff term is not defined in either the HTSUS or its legislative history,” its correct meaning is its common or commercial meaning. See Rocknel Fastener, Inc. v. United States, 267 F.3d 1354, 1356 (Fed. Cir. 2001). “To ascertain the common meaning of a term, a court may consult ‘dictionaries, scientific authorities, and other reliable information sources’ and ‘lexicographic and other materials.’” Id. at 1356-1357 (quoting C.J. Tower & Sons v. United States, 69 C.C.P.A. 128, 673 F.2d 1268, 1271 (1982); Simod Am. Corp. v. United States, 872 F.2d 1572, 1576 (Fed. Cir. 1989)). The Fairchild Books Dictionary of Textiles (hereinafter referred to as the “Fairchild Dictionary”) cross-references the term “microfiber” for the term “microdenier.” Phyllis G. Tortora & Ingrid Johnson, The Fairchild Books Dictionary of Textiles 384 (Olga Kontzias et al. eds., 8th ed. 2013). The definition provided for “microfiber” in the Fairchild Dictionary is as follows, “[v]ery fine filament or staple fiber, generally less than 1.0 denier per filament or 10 microns (?) in diameter. These fibers are used to produce lightweight, soft fabrics.” Id. at 385. (the definition also cross-references ultrafine fiber, but that is not relevant to this inquiry).
The following chart provides the CBP Laboratory’s measurements in diameter or average diameter of the fibers in the subject seventeen samples:
Style
Micrometers or Microns
Austen
>10
Beckett
14.2 (+/- 3.4)
Capote
>10
Channel
>10
Clarke
>10
Hemingway
>10
Huxley
>10
Instill
14.7 (+/- 2.7)
Kipling
>10
Parker
>10
Playmat
>10
Prompt
13.8 (+/- 2.8)
Salinger
>10
Tolstoy
>10
Twain
14.4 (+/- 2.5)
Vibe II
14 (+/- 2.6)
Wilde
>10
Based on the CBP laboratory measurements, all the subject samples measured more than 10 microns in diameter or average diameter, therefore, the subject samples do not meet the definition of microfiber provided in the Fairchild Dictionary. Since the term microdenier and microfiber are interchangeable, then the subject samples do not meet the specifications of microdenier fibers either. As previously noted, to meet the exclusion to Section 301 provided for in U.S. note 20(ll)(18) to Chapter 99, HTSUS, the products must be “[f]abrics of man-made micro-denier fibers.” Since the subject samples are not microdenier fibers, then they cannot be excluded from the Section 301 duties pursuant to that note. Accordingly, the subject samples are classified in subheading 5903.20.25, HTSUS, and are subject to the additional Section 301 duties of subheading 9903.88.03, HTSUS.
HOLDING:
The subject seventeen styles of impregnated, coated, covered, or laminated textile fabrics are classified under heading 5903, HTSUS, and specifically, in subheading 5903.20.25, HTSUS, which provides for “Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902: With polyurethane: Of man-made fibers: Fabrics specified in note 9 to section XI: Other: Other.” The 2018 and 2019 column one, general rate of duty is 7.5 percent ad valorem.
The subject seventeen styles of impregnated, coated, covered, or laminated textile fabrics are not excluded under U.S. note 20(ll)(18) to Chapter 99, HTSUS, from the additional 10 percent Section 301 duty provided for in subheading 9903.88.03, HTSUS.
You are instructed to DENY the protest.
You are instructed to notify the protestant of this decision no later than 60 days from the date of this decision. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to this notification. Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (“CROSS”) at https://rulings.cbp.gov/ which can be found on the U.S. Customs and Border Protection website at http://www.cbp.gov and other methods of public distribution.
Sincerely,
Yuliya A. Gulis for
Gregory Connor, Acting Director
Commercial and Trade Facilitation Division