United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 2000 HQ Rulings > HQ 084357 - HQ 114893 > HQ 114693

Previous Ruling Next Ruling
HQ 114693




December 10, 1999

ENT-1-07-RR:IT:EC 114693 CC

CATEGORY: ENTRY

Chief, Residual Liquidation and
Protest Branch
U.S. Customs Service
6 World Trade Center, Room 761
New York, NY 10048-0945

RE: Application for further review of Protest No. 1001-97-106500; Notice to Redeliver; 19 CFR § 132.62(d); C.S.D. 90-99

Dear Sir:

The above-referenced protest was forwarded to this office for further review. We have considered the facts and issues raised, and our decision follows.

FACTS:

The merchandise the subject of this protest is textile piece goods. The fabric is constructed of a satin weave and is dyed. The protest consists of one entry, which was made on July 14, 1997. The merchandise was entered under subheading 5407.52.2060 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), dutiable at 16.4 percent ad valorem and subject to textile category 620.

Customs made a request for a sample on a Customs Form (CF) 28, Request for Information, on July 29, 1997. On August 14, 1997, Customs gave notice that the sample had been received and was being sent to the laboratory to verify classification, quota, and visa. In the laboratory report dated September 15,1997, the merchandise was found to consist of, by weight, 49.4 percent polyester staple fiber, 48 percent polyester filament, and 2.6 percent spandex. Based on the laboratory report, Customs reclassified the merchandise under subheading 5515.12.0040, HTSUSA, dutiable at 15.5 percent ad valorem and subject to textile category 628. On October 2, 1997, Customs sent a notice to redeliver because, as reclassified, the merchandise required a different visa category from that contained in the visa submitted.

The protest was filed on December 31, 1997. The protestant protests the classification of the merchandise and the timeliness of the redelivery notice. The protest and application for further review was denied by the port on September 11, 1998. A request to set aside denial of the application for further review pursuant to 19 U.S.C. § 1515(c) was made by the importer on September 24, 1998. In a letter dated October 23, 1998, our file number 114500, we set aside denial of the application for further review and voided the denial of the protest, instructing the port to forward the protest to headquarters for review.

ISSUES:

1. What is the proper classification of the subject merchandise.

2. Whether the subject Notice to Redeliver was timely issued.

LAW AND ANALYSIS:

Classification

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI’s), taken in order. GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.

Heading 5407, HTSUSA, provides for woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of Heading 5404. Heading 5515, HTSUSA, provides for other woven fabrics of synthetic staple fibers.

The subject merchandise is composed of 97.4 percent polyester woven fabric and 2.6 percent spandex filament yarn. After the fabric is woven, it is subjected to a process called “brushing,” which creates a suede or velvet-like texture on one side. That processing causes the filament yarn in the filling to cut, break, or otherwise separate on the surface of the fabric. The protestant acknowledges that the brushing may result in the breakage of some of the filament fibers, but argues that the processing does not change the character of the fabric into staple fibers.

Several rulings have been done on this issue, where processing such as brushing, buffing, etc., causes the filament yarn in the filling to cut, break, or otherwise separate on the surface of the fabric so that the fibers are short discontinuous fibers having the characteristics of staple fibers. See Headquarters Ruling (HQ) 962467, dated June 11, 1999, and HQ 961015, dated July 14, 1998. We have found in those rulings that such fabric meets the physical description of staple fibers and should be
classified accordingly. We find, therefore, that the brushing of the subject fabric creates staple fibers.

The Customs Laboratory analysis of the subject fabric found that the fiber content, in percent by weight, of the subject fabric is the following: 49.4 percent polyester (staple); 48.0 percent (filament); 2.6 percent spandex (filament).

Section XI, HTSUSA, covers textiles and textile articles. Note 2(A) to Section XI provides that goods classifiable in chapters 50 to 55 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.

Based on the laboratory analysis, the staple fibers are 49.4 percent by weight. The filament yarn, consisting of the polyester filament (48 percent) and the spandex filament (2.6 percent) comprises 50.6 percent by weight of the fabric and thus predominates by weight in the subject fabric. Consequently, the fabric is classified in Heading 5407, HTSUSA, which provides for woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of Heading 5404.

The protestant claims that the subject fabric is classified under subheading 5407.52, HTSUSA, which at the subheading level, provides for other woven fabrics, containing 85 percent or more by weight of textured polyester filaments. Since the subject fabric contains less than 85 percent by weight of textured polyester filaments, it is not classifiable under that subheading. Instead, the proper classification at the subheading level is 5407.92.2050, HTSUSA, which provides at the subheading level for other woven fabrics, dyed, other, other, satin weave or twill weave.

Notice to Redeliver

Initially, we note that a demand for redelivery is a protestable matter pursuant to 19 U.S.C. § 1514(a)(4). In addition, the subject protest was timely filed in accordance with 19 U.S.C. § 1514(c)(3)(B).

Section 113.62 of the Customs Regulations (19 CFR § 113.62) contains the basic importation and entry bond conditions. Paragraph (d) of this provision states the following:

If merchandise is released conditionally from Customs custody to the principal ... before its right of admission into the United States is determined, the principal agrees to redeliver timely, on demand by Customs, the merchandise released if it:

(1) Fails to comply with the laws or regulations governing admission into the United States; ...

It is understood that any demand for redelivery will be made no later than 30 days after the date that the merchandise was released or 30 days after the end of the conditional release period (whichever is later).

In C.S.D. 90-99, Customs stated that 19 CFR § 132.62(d) prevents Customs from enforcing a demand for redelivery issued over 30 days after the date that the merchandise was released unless a conditional release period is established. In addition, a request for a sample on a CF 28 made no later than 30 days after release of the merchandise establishes a conditional release period. The beginning of the conditional release period is the date the CF 28 is issued, and the end of the conditional release period is the date Customs receives the sample. A demand for redelivery must be made no later than 30 days after the sample is received.

For the subject merchandise, a conditional release period was established when a sample was requested by Customs on July 29, 1997. The end of the conditional release period was on August 14, 1997, when Customs received the sample. Consequently, Customs had thirty days from that date to make a valid demand for redelivery. The demand for redelivery was not made until October 2, 1997. Since the demand was not made until over 30 days after the end of the conditional release period, the demand for redelivery was not timely and is unenforceable.

HOLDINGS:

The proper classification of the merchandise is under subheading 5407.92.2050, HTSUSA, which provides for woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of Heading 5404, other woven fabrics, dyed, other, other, satin weave or twill weave. The rate of duty at the time of entry was 16.4 percent ad valorem, and the textile category was 628. The notice to redeliver was not timely issued. Consequently, 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,

Jerry Laderberg

Previous Ruling Next Ruling

See also: