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HQ 964405




April 24, 2001

CLA-2 RR:CR:TE 964405 mbg

CATEGORY: CLASSIFICATION

TARIFF NO.: 6302.21.7020; 6302.21.7010

Ms. Angela Downey
Port Director
1 East Bay Street
Savannah, Georgia 31401

RE: Decision on Application for Further Review of Protest No. 1703-00- 100076; Classification of Napped Bed Sheets

Dear Ms. Downey:

This is a decision on an application for further review of a protest timely filed by Induter USA Inc. through counsel, Stephen M. Zelman & Associates. This protest was filed against your decision regarding the classification under the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”) for 100 percent cotton woven bed linen. The Protestant disagrees with the decision of the port to liquidate the subject merchandise under subheading 6302.21.90, HTSUSA, as not napped printed cotton bed sheets, and claims that the merchandise was properly classified and entered under 6302.21.70, HTSUSA, as napped printed cotton bed sheets.

FACTS:

Swatches of representative 100 percent cotton woven bed linen made in Spain were submitted. The protestant contends that styles Victorian Tapestry, Shadow Trellies, Delphinium, Drifting Lillies, Dragon Poppies and 250TC Printed Sateen are napped and classifiable under subheading 6302.21.70, HTSUS. Detailed information and photographs have been submitted describing the process and machinery involved in producing the fabric as well as an affidavit from a textile expert. In
addition, Protestant has submitted a sample of the Dragon Poppies bed linen which Protestant claims is not napped for comparison purposes. Protestant has also submitted a swatch of sample 230TC Solid Color but this sample is not under consideration in the subject protest.

For tariff classification purposes, the difference between napped and not napped bed linen is less than 3 percent ad valorem, however, not napped printed bed linen from the European Union is subject to a 100 percent ad valorem rate of duty pursuant to trade sanctions imposed by the United States Trade Representative.

The Protestant claims the classification applied by Customs upon liquidation of the subject merchandise was also incorrect due to the consideration of only the sheets and not the pillowcases which together comprise the subject “sheet sets.” Protestant was issued New York Ruling Letter (“NY”) F83310, dated March 15, 2000, in which the subject merchandise was classified under subheading 6302.21.90, HTSUS, as “Other bed linen, printed, of cotton, not napped” and dutiable at the ad valorem rate of 7.1 percent or 7.2 percent (depending on the year of entry).

Protestant filed an Application for Further Review with Customs to protest Customs classification of the subject merchandise as “not napped” under the terms of the HTSUSA. Review of Protestant’s Application for Further Review was granted pursuant to 19 C.F.R. § 174.24(c), which authorizes this office to review protests which were previously ruled on by Customs but in which a legal argument was not considered at the time of the original ruling. The subject protest involves the classification of bed linen with a low level of napping or brushing under the HTSUSA which warranted further review in light of arguments concerning Customs prior classification of such merchandise.

ISSUE:

What is the proper classification for the submitted bed sheets?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA 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 GRI may then be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80. The EN state in regard to heading 6302, HTSUSA, that “bed linen” includes “sheets, pillowcases, bolster cases, eiderdown cases and mattress covers.” As bed linen is eo nomine provided for within heading 6302, HTSUSA, classification within this heading is proper.

Under the terms of the HTSUSA, the classification of bed linen depends upon the fiber content; whether printed or not; whether napped or not; whether any component contains embroidery, trimming, lace, etc., and whether the sheet set constitutes a "retail" set or not. It is undisputed that the submitted styles, Victorian Tapestry, Shadow Trellies, Delphinium, Drifting Lilies, Dragon Poppies and 250TC Printed Sateen, have a printed design which will impact the tariff classification. However, the determinative issue in this case is whether the subject sheets are considered napped or not napped for tariff classification purposes and specifically what level or amount of napping is required.

Statistical Note 1(k) to Chapter 52 of the HTSUSA which provides for cotton states:

The term “napped” means fabrics with a fuzzy, fibrous surface produced by scratching or pricking the surface so that some of the fibers are raised from the body of the yarn. Napped fabrics are not to be confused with pile fabrics. Outing and canton flannel, moleskin, etc. are typical fabrics with a nap.

Determination of the tariff classification of the subject merchandise requires an understanding of terminology which is germane to the issue and utilized by the textile industry. We note the following definitions:

Nap- A downy surface given to a cloth when part of the fiber is raised from the basic structure. Dictionary of Fiber & Textile Technology 100 (1990).

Napping- A finishing process that raises the surface fibers of a fabric by means of passage over rapidly revolving cylinders covered with metal points or teasel burns. Dictionary of Fiber & Textile Technology 100 (1990).

Napped Fabrics- Napped fabrics are processed so that they have either a slight or a dramatic nap on the face or both
sides of the fabric. The napping process is accomplished by weaving loosely twisted yarns into the textile, which are then sheared and brushed to create the soft napped surface. Napped fabrics differ from PILE fabrics, in that they do not have extra threads incorporated in the textile.

Napping is considered a FINISHING process and is used on many fibers, including manufactured fibers, silk and wool, as well as specialty fibers such as camel hair and mohair. Occasionally the napped effect does not continuously cover the fabric but is executed in stripes or figures. Encyclopedia of Textiles, Judith Jerde, 157 (1992).

Napped-Finished Goods- These may be of a single or double finish, slight or heavy. Single finish occurs when one side of the goods is napped; double finish fabric has both sides of the material napped.

A slight finish occurs when the napped cloth is not as high in protruding fibers nor as thick when compared with heavy nap. The finish is given to fabrics known for their napped characteristics and for those that can withstand the rigors of the treatment. Certain woolen and cotton cloths receive this type of treatment- baby clothes, blankets, domett, flannel, lining, molleton, silence cloth, etc.

The finish is applied by rollers covered with 1 inch card clothing similar to that used on the fancy roller of the woolen card, or by a roller clothed with teasels.

Some fabrics are given from three to four up to ten or twelve roller treatments to obtain the desired napped effect for the surface finish. The napping may be done in the gray goods states as well as in the regular finishing operations. The Modern Textile and Apparel Dictionary, George E. Linton, 386 (1973).

(emphasis added.)

Neither the Court of International Trade nor its predecessor, the Customs Court, have considered the issue of napping exclusive of making a distinction from pile. However, in Tilton Textile Corp. v. United States, 424 F.Supp 1053, 77 Cust. Ct. 27, C.D. 4670 (1976) aff’d, 565 F.2d 140 (1977), the court stated:

[W]hat is termed a "nap" or "napped fabrics" is produced by the raising of some of the fibers of the threads which compose the basic fabric, whereas the "pile" on "pile fabrics" must be the raising at intervals, in the form of loops, the entire thickness of extra threads introduced into, but not essential to the basic fabric, which thus form an "uncut pile."

Tilton at 44. (emphasis added.) The Customs Court acknowledged that only some of the fibers must be raised on the fabric. Furthermore, Statistical Note 1(k), Chapter 52 to the HTSUS which defines napping does not require that a specified amount of fibers must be raised in order to qualify as a napped good. Rather the note requires that “some of the fibers” are raised.

The issue of what levels of napping are required in order to be considered “napped” for tariff classification purposes under the HTSUSA was based on the issuance of a ruling under the previous tariff. HQ 080945, dated July 20, 1988, dealt with the issue of whether cotton twill fabric was napped for purposes of the Tariff Schedule of the United States, the predecessor to the current Harmonized Tariff Schedule of the United States. HQ 080945 stated:

Both technical literature and the Statistical Headnotes to the Tariff Schedules of the United States Annotated (“TSUSA”) indicate that for a fabric to be known as napped it must have a substantial portion of at least one surface covered with raised fibers.

(emphasis added). However, review of Headnote 1(k), Subpart A, Part 3, Schedule 3 TSUSA, which is the relevant TSUSA note on napped fabrics, reveals that HQ 080945 was in error. The TSUSA note states:

Napped: Fabrics with a fuzzy, fibrous surface produced by scratching or pricking the surface so that some of the fibers are raised from the body of the yarn. Napped fabrics are not to be confused with pile fabrics. Outing and canton fabrics, moleskin, etc., are typical fabrics with a nap.

See Headnote 1(k), Subpart A, Part 3, Schedule 3 TSUSA. The applicable note under the TSUSA only requires that some of the fibers are raised in the fabric to be napped. This is consistent with the HTSUSA as well as the Tilton decision.

Research in various textile sources as well as analysis by laboratory experts reveals that the subject merchandise has been subjected to a low level of brushing which has created a napped effect on the bed linen. Upon receipt of this Protest, Customs subjected the merchandise to further lab analysis and the Customs laboratory confirmed Protestants own lab report which claims the subject merchandise is a woven, napped fabric albeit with a low level of napping evident.

The tariff does not require that a set amount of fibers must be raised in order to qualify as a napped product for classification purposes and therefore the U.S. Customs Service will not subjectively determine levels of napping which must be fulfilled for products to be classified as napped. While the napping on the subject merchandise is slight, the level of napping is still visible to the eye and has been accomplished through the brushing process which is necessary for the formation of all napping. Therefore, it is the determination of the Office of Regulations & Rulings, that the subject merchandise is considered napped for tariff classification purposes.

HOLDING:

The subject bed sheets are properly classified in subheading 6302.21.7020, HTSUSA, as “Bed Linen, table linen, toilet linen and kitchen linen: Other bed linen, printed: Of cotton: Other: Napped: Sheets.” The general column one rate of duty is 4 percent ad valorem. The textile restraint number is 361.

The subject pillowcases are properly classified in subheading 6302.21.7010, HTSUSA, as “Bed Linen, table linen, toilet linen and kitchen linen: Other bed linen, printed: Of cotton: Other: Napped: Pillowcases, other than bolster cases.” The general column one rate of duty is 4 percent ad valorem. The textile restraint number is 360.

The protest should be GRANTED. 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.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director

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