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HQ W968191




January 25, 2008

CLA-2 OT:RR:CTF:TCM W968191 GC

CATEGORY: CLASSIFICATION

TARIFF NO.: 5407.71.0060; 5407.81.0090; 5407.91.2090; 5407.93.2090

U.S. Customs and Border Protection
Charlotte Service Port
1901 Crossbeam Drive
Charlotte, NC 28217

Attn: Port Director

RE: Tariff classification of Culp, Inc. woven mattress ticking fabrics; Protest Number 1512-06-100017

Dear Port Director:

This letter is in reply to protest, and application for further review, number 1512-06-100017, dated March 15, 2006. Alston & Bird, LLP filed the protest on behalf of the importer, Culp, Inc. (Culp) against Customs and Border Protection’s (CBP) reclassification and subsequent liquidation of entries relating to six styles of woven mattress ticking fabrics. In preparation of this ruling, consideration was also given to the written submission prepared by counsel for Culp, dated January 11, 2008, as well as the substance of the phone conference with counsel for Culp on January 23, 2008.

FACTS:

This protest pertains to twenty-seven entries entered between November 1, 2004 and February 15, 2005, and which cover the six styles of woven mattress ticking fabric described herein. The imported styles have been coated on the reverse side with an acrylic plastics material.

The Classic style (number PB 2551) is composed of 79% polyester filament yarn and 21% polyolefin filament yarn. The weave of the fabric has a basic pattern consisting of the vertical threads woven in conjunction with the horizontal.

The Regal/Sachet style (number PB 2441) is composed of 51% polyester filament yarn, 34% viscose rayon staple yarn, and 15% polyolefin filament yarn. The weave has a geometric pattern consisting of a dotted design that is made by skipping rows in the weave in certain places. The composition of the Regal/Natural style (number PB 2441) fabric is identical to the Regal/Sachet except for the color of the incorporated yarns.

The Natural style (number PB 2506) is composed of 73% polyester filament yarn, 21% cotton yarn, and 6% polyolefin filament yarn. The weave of the fabric creates a pattern of regularly spaced indentations on the back of the fabric.

The Gold style (number PB 2456) is composed of 53% polyester filament yarn, 41% viscose rayon staple yarn, and 6% polyolefin filament yarn. The weave has a pattern that is created by using contrasting yarns and skipping rows in the weave in certain places. The composition of the Mist style (number PB 2456) is identical to the Gold except for the color of the incorporated yarns.

At liquidation, CBP classified the subject merchandise in various subheadings in heading 5407 of the Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404.” Counsel for Culp asserts that the fabrics are properly classifiable in heading 5903, HTSUS, which provides for “Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902.” As such, Culp is protesting CBP’s classification and liquidation of the subject merchandise. ISSUE:

Do the subject entries fall within the scope of heading 5903, HTSUS? If not, what is the proper classification for the imported merchandise?

LAW AND ANALYSIS:

Initially we note that the matter is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification and the rate and amount of duties chargeable. The protest was timely filed on March 15, 2006, within 180 days of liquidation of the entries between December 30, 2005 and February 3, 2006, pursuant to 19 U.S.C. §1514(c)(3).

Further review of Protest 1512-06-100017 was properly accorded to protestant pursuant to 19 C.F.R. §174.24. In accordance with Section 174.24(b), 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.

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 GRIs 2 through 6 may then be applied in order. The HTSUS provisions under consideration fall within headings 5903, HTSUS (2004 and 2005), and 5407, HTSUS (2004 and 2005). Classification in the various subheadings under heading 5407, HTSUS, depends on the construction, fiber content and condition of the subject fabric. Subheading 5903.90.2500, HTSUS, outlined below, is the only subheading in Chapter 59 under consideration here.

5407 Woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404: Other woven fabrics, containing 85 percent or more by weight of synthetic filaments:

5407.71.00 Unbleached or bleached,

5407.71.0060 Weighing more than 170 g/m2

Other woven fabrics, containing less than 85 percent by weight of synthetic filaments, mixed mainly or solely with cotton:

5407.81.00 Unbleached or bleached,

5407.81.0090 Other

Other woven fabrics:

5407.91 Unbleached or bleached:

5407.91.20 Other,
Other:

5407.91.2090 Other

Other woven fabrics:

5407.93 Of yarns of different colors:
Mixed mainly or solely with wool or fine animal hair:

5407.93.20 Other,
Other:

5407.93.2090 Other

5903 Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902:

5903.90 Other:
Of man-made fibers:
Other:

5903.90.2500 Other

Culp suggests that the subject merchandise should be classified in subheading 5903.90.2500, HTSUS, which provides for: “Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902: Other: Of man-made fibers: Other: Other.” In determining whether or not an article fits within the scope of heading 5903, HTSUS, the analysis first turns to Legal Note 2 of Chapter 59. It states, in pertinent part, that:

Heading 5903 applies to:

Textile fabrics, impregnated, coated, covered or laminated with
plastics, whatever the weight per square meter and whatever the nature of the plastic material (compact or cellular), other than:

Fabrics in which the impregnation, coating or covering cannot be seen with the naked eye (usually chapters 50 to 55, 58 or 60); for the purposes of this provision, no account should be taken of any resulting change of color

The text of Note 2(a)(1) indicates that the sole determinant of whether a given article falls within the scope of heading 5903 is if the plastics material coating that article is visible to the naked eye. See also Headquarters Letter Ruling (HQ) 955031, dated March 30, 1994.

While the Nomenclature does not elaborate on the meaning of “visible to the naked eye,” CBP has ruled extensively on what may and may not be taken into consideration during an examination of the article for the purpose of classification in heading 5903. Generally speaking, determining whether the plastic coating on a particular textile fabric is visible to the naked eye cannot take into account a change in the fabric’s color or stiffness in comparison with an uncoated fabric. While a difference in color or stiffness between the coated or uncoated fabric might be indicative of a plastics coating, such a conclusion would not necessarily be accurate, as there are other methods of changing a fabric’s color, sheen or stiffness. See HQ 958261, dated February 14, 1996. Consequently, differences in color and stiffness between coated and uncoated fabrics are not considered in determining whether a plastics coating is visible to the naked eye.

With respect to the examination of the Classic style (number PB 2551), Culp stresses that the coated side of the fabric appears to be duller or more matted than the uncoated side. Culp also notes that the uncoated side of the fabric is plush and soft while the coated side is stiff and rubbery. As previously mentioned, a visual inspection does not take into account these effects that the plastic coating has on the fabric. Thus, while there might be apparent differences between coated and uncoated samples in terms of color, stiffness or sheen, these effects do not make the plastic coating visible to the naked eye. Accordingly, the dull or matted finished of the coated sample here, on its own, does not constitute evidence that the plastics coating is visible to the naked eye. See HQ 950022, dated September 26, 1991; HQ 952697, dated January 12, 1993. As to the stiff and rubbery appearance, it should be noted that “stiff” and “rubbery” are used to describe tactile observations and not visual. The flat appearance of the coated side of the fabric is attributable to the satin weave of the fabric, which brings a larger proportion of the textured warp yarns to the other side of the fabric, leaving the coated side with a flat appearance.

Culp also contends that the plastic coating on the Classic style fabric is visible to the naked eye because it fills in the interstices in the weave. While this certainly would support a finding that the coating is visible to the naked eye (see HQ 083194, dated December 8, 1989), an examination of the sample shows no indication of a plastic coating in the interstices that is visible to the naked eye. Consequently, the plastics coating on one side of the subject Classic style fabric is not visible to the naked eye.

Culp states that the dotted design on the Regal/Sachet and the Regal/Natural styles (number PB 2441) is more difficult to discern on the coated fabric than on the uncoated fabric, thus making the plastics coating visible to the naked eye. Also, according to Culp, the coating fills in the spaces between the rows of the loosely woven fabric, making it denser and stiffer than if it were uncoated. With respect to the dotted pattern, a visual inspection of the coated sample reveals that the fabric’s pattern is indeed unobscured. As previously noted, the effects of the plastic coating on the subject fabric such as density and stiffness, are not to be taken into account for the purpose of determining whether the plastic is visible through the naked eye. Accordingly, the physical examination of the sample does not result in the conclusion that the fabric is coated with plastic.

With respect to the Natural style (number PB 2506), Culp states that the plastic masks the fabric’s sheen, giving it a duller or more matted appearance when compared to the uncoated sample. However, a dull or matted appearance, on its own, is not indicative of a plastic coating, as such an appearance can be caused by numerous other factors. Culp also states that the plastic coating alters the texture of the fabric. While this might be the case, the change in texture is not visually noticeable. As a consequence, the plastic coating on the Natural style is not visible to the naked eye.

The same analysis applies to the Gold and Mist styles (number PB 2456). Culp states that the plastic coating results in a dull or matted appearance in comparison to the fabric sample without plastic coating. Furthermore, Culp notes that the texture of the coated fabrics is different than the uncoated fabrics. While both assertions might be true to a certain extent, the fact remains that, when viewed alone, there is no indication of plastic coating on the sample fabrics.

While the fabrics at issue here have been partially coated with a plastics material, they are not classifiable in heading 5903, HTSUS, as a consequence of Note 2(a) of Chapter 59, which requires that the plastics coating of goods classifiable in heading 5903 be visible to the naked eye. As the plastics coating of the fabrics at issue in this case is not visible to the naked eye, the fabrics are classifiable under the headings that would apply to them absent any plastics coating whatsoever.

Consequently, all of the styles discussed herein are classifiable in heading 5407, HTSUS (2004 and 2005), as “Woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404.”

HOLDING:

By application of GRI 1, the following items, based on the information available, appear to be classifiable in the following HTSUS (2004 and 2005) subheadings.

The Classic style (number PB 2551) likely is classifiable under subheading 5407.71.0060, HTSUS (2004 and 2005), which provides for: “Woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404: Other woven fabrics, containing 85 percent or more by weight of synthetic filaments: Unbleached or Bleached, Weighing more than 170 g/m2.” The column one, general rate of duty at the time of entry was 14.9 percent ad valorem.

The Regal/Sachet style (number PB 2441) likely is classifiable under subheading 5407.93.2090, HTSUS (2004 and 2005), 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: Mixed mainly or solely with wool or fine animal hair: Other, Other: Other.” The column one, general rate of duty at the time of entry was 12 percent ad valorem.

The Regal/Natural style (number PB 2441) likely is classifiable under subheading 5407.91.2090, HTSUS (2004 and 2005), which provides for: “Woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404: Other woven fabrics: Unbleached or bleached: Other, Other: Other.” The column one, general rate of duty at the time of entry was 14.9 percent ad valorem.

The Natural style (number PB 2506) likely is classifiable under subheading 5407.81.0090, HTSUS (2004 and 2005), which provides for: “Woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404: Other woven fabrics, containing less than 85 percent by weight of synthetic filaments, mixed mainly or solely with cotton: Unbleached or bleached: Other.” The column one, general rate of duty at the time of entry was 14.9 percent ad valorem.

The Gold style (number PB 2465) likely is classifiable under subheading 5407.93.2090, HTSUS (2004 and 2005), 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 column one, general rate of duty at the time of entry was 12 percent ad valorem.

The Mist style (number PB 2465) likely is classifiable under subheading 5407.91.2090, HTSUS (2004 and 2005), which provides for: “Woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404: Other woven fabrics: Unbleached or bleached: Other, Other: Other.” The column one, general rate of duty at the time of entry was 14.9 percent ad valorem.

The protest should be DENIED. In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together 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 Regulations and Rulings of the Office of International Trade 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.

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division

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