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HQ 966293




March 31, 2004

CLA-2 RR:CR:TE 966293 ASM

CATEGORY: CLASSIFICATION

TARIFF NO.: 5407.93.2010

Area Director, JFK International Airport Area Customs and Border Protection c/o Liquidation and Protest Branch
Building 77
JFK International Airport
Jamaica, New York 11430

RE: Decision on Application for Further Review of Protest No. 4701-2003-100162, concerning the classification of Jacquard Woven Fabric; not made up

Dear Area Director:

This is a decision on a protest timely filed by Gloria S. Oh Customshouse Broker on behalf of Cedars Laces/E-Woo Fashion USA Co., Ltd., on January 29, 2003, against your decision to issue a Notice for Redelivery, dated November 20, 2002, for merchandise entered at the Customs and Border Protection (CBP), JFK International Airport Area, New York. A sample of the subject merchandise has been submitted to this office for examination.

FACTS:

The sample, which has been identified by the Protestant as a “Head Tie”, is a rectangular piece of jacquard woven fabric measuring 36 inches wide x 72 inches long. According to the Protestant, the fabric is composed of 77.5 percent textured filament polyester and 22.5 percent metalized yarn. The fabric weighs approximately 267 g/m2 and is characterized by an elaborate woven stylized floral motif with geometric accents. The sample appears to have been cut from a larger piece of fabric and has been additionally processed with a finishing treatment that stiffens the texture and prevents fraying. Although the finishing treatment is not clearly visible to the eye, the fabric appears to be darker on one side. The dark side, or wrong side of the fabric, also bears the loose ends of the gold/silver metallic threads used in the woven floral jacquard design. The trademark “Janis Super” ® is woven into the length of the fabric at 5 inch intervals.

The Protestant argues that the item is a finished product, a type of scarf, which has been subjected to special treatment that makes it “crispy” in order to make it hold a shape. In addition, the Protestant contends that the presence of the trademarked logo is an indication that this item is a finished article and should be classified as a scarf under subheading 6214.30.0000, HTSUSA, which provides for “Shawls, scarves, mufflers, mantillas, veils and the like: Of synthetic fibers”. Descriptive literature was furnished that showed the merchandise being worn on the head.

ISSUE:

What is the proper classification for the merchandise? Whether the demand for redelivery was proper?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) 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 heading 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, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

In order to classify the subject merchandise, it is first necessary to determine whether or not the article is “made up” within the meaning of Note 1 to Chapter 62, HTSUSA. Section XI, Note 7 of the HTSUSA, defines the term “made up” for the purposes of Section XI, as follows:

For the purposes of this section, the expression “made up” means:

Cut otherwise than into squares or rectangles; 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); 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 unravelling by whipping or other simple means; Cut to size and having undergone a process of drawn thread work; 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 Knitted or crocheted to shape, whether presented as separate items or in the form of a number of items in the length.

In this instance, the fabric has been cut to a rectangular shape and left with raw edges. As such, it would not be considered “made up” by operation of Note 7(a) to Section XI. Furthermore, the fabric cannot be considered “made up” by application of Note 7(c), Section XI. Although the material has been coated to stiffen the texture of the fabric, there are no hemmed, rolled, or fringed edges. Thus, the cut edges would be considered finished by a “simple means” to prevent unravelling within the meaning of Note 7(c) to Section XI. The article has not undergone any process of drawn threadwork or any assembly processes and therefore cannot be considered “made up” by application of Note 7(d) or Note 7(e), Section XI. Finally, since the article is jacquard woven, Note 7(f), Section XI, does not apply.

In view of the foregoing, only Note 7(b), Section XI, can be considered in determining whether or not the goods have been produced in the finished state as “made up” goods for the purposes of this section. The EN to Section XI, Note 7(b), is set forth in the General Notes, Section XI, (II) Chapters 56 to 63, and provides in relevant part as follows:

Made up articles.

Under Note 7 to this Section, the expression “made up” in Chapters 56 to 63 means:

Produced in the finished state, ready for use (or merely needing separation by cutting dividing threads) without sewing or other working. Goods of this kind include products knitted or crocheted directly to shape and certain dusters, towels, table cloths, scarf squares, blankets, etc., with threads along the warp left unwoven or the weft edges cut to form a fringe. Such articles may have been woven separately on the loom, but may also have been simply cut from lengths of fabric which have bands of unwoven threads (generally warp threads) at regular intervals. These lengths of fabric, from which ready-made articles of the types described above may be obtained by simply cutting the dividing threads, are also considered as “made up” articles.

However, rectangular (including square) articles simply cut out from larger pieces without other working and not incorporating fringes formed by cutting dividing threads are not regarded as “produced in the finished state” within the meaning of this Note. The fact that these articles may be presented folded or put up in packings (e.g., for retail sale) does not affect their classification.

The subject article is a rectangular piece of fabric that has been cut from a larger piece of woven fabric. The fabric has not been additionally worked, nor does it incorporate fringed edges that have been formed by cutting dividing threads. The Protestant has submitted promotional literature and “Janis Super” trademark information, which merely provides general product information for women’s outer clothing and scarves. The Protestant has also submitted “Cedars Laces” company literature which advertises women’s outer clothing, scarves, laces, headties, and various specialty “African fashion fabrics” (guipure, organza, taffeta, silky taffeta, voile, etc.).

In the merchandise at issue, the raw-edged rectangular pieces of fabric are folded and put up for retail sale in clear plastic bags with only a small rectangular cardboard tag (3.5 inches x 2.5 inches) bearing the fabric’s dimensions and trademark information. As specifically noted in the EN, such features do not affect classification under Chapters 56 to 63 for purposes of determining that the goods are “made up” within the meaning of Note 7, Section XI.

It is our determination that the subject fabric is not “made up” within the meaning of Note 7, Section XI, HTSUSA. This decision is consistent with numerous CBP administrative rulings where a fabric that is cut to a square or rectangle and sold to consumers was not considered “made up”. In Headquarters’ Ruling Letter (HQ) 955458, dated June 8, 1994, a tack cloth was not considered to be “made up” pursuant to Note 7(b), Section XI, because it had been cut into rectangles and was unhemmed. The fact that it had been folded and sold directly to consumers in such condition did not bring the product within the purview of Note 7(b), Section XI. The decision in HQ 955458, cited to the EN for Note 7(b), Section XI, in finding that the tack cloth could not be regarded as “produced in the finished state” because the fact that these articles may be presented folded or put up in packings (e.g., for retail sale) does not affect their classification. See also HQ 089058, dated July 25, 1991, and HQ 089592, dated September 20, 1991, where CBP set forth the same rationale in determining that certain unhemmed cloth wipes were not “made up” within the meaning of Note 7, Section XI.

The subject article is excluded from classification in Chapter 62, HTSUSA, pursuant to Note 1, which states that Chapter 62 applies only to “made up” articles. Thus, it cannot be classified as a scarf of heading 6214, HTSUSA, as claimed by the Protestant. Nor do we consider the merchandise to be “headgear” under the provisions of the HTSUSA. Section XI, Note 1(o), excludes “Hair-nets or other headgear or parts thereof of chapter 65”. As previously noted, the merchandise is put up for retail sale in clear plastic bags with only a small rectangular cardboard tag bearing the fabric’s dimensions and trademark information. While the promotional literature indicates that the Cedars Laces Company sells “Headties”, the retail packaging for the merchandise bears no advertising that would identify this article as headgear to the consumer. Therefore, we cannot find that the article is classifiable as “headgear” under heading 6505, HTSUSA. Finally, since the coating on the fabric is not visible to the naked eye, it is not considered a coated fabric either for the purposes of classification as a coated fabric of textile in Chapter 59, HTSUSA, or as a plastic product of Chapter 39, HTSUSA.

In view of the foregoing, we find that the article is classifiable as a flat woven fabric of Chapters 50 to 55, HTSUSA. Since the fabric is composed of a mixture of fibers, i.e., 77.5 percent filament polyester and 22.5 percent metalized yarn, we must apply Note 2(A), Section XI, which 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”. Thus, the merchandise is properly classified in subheading 5407.93.2010, HTSUSA, in the provision for “Woven fabrics of synthetic filament yarn, Other woven fabrics: Of yarns of different colors: Other: Other, Mixed mainly or solely with artificial filaments or metalized yarn”.

HOLDING:

The Notice to Redeliver was properly issued to the Protestant.

The subject merchandise, identified by the Protestant as a “Head Tie”, is correctly classified in accordance with the 2002 HTSUSA, which is the tariff that was in effect at the time of entry. Accordingly, the merchandise is classified in subheading 5407.93.2010, HTSUSA, 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, Mixed mainly or solely with artificial filaments or metalized yarn”. The general column one duty rate under the 2002 HTSUSA was 13 percent ad valorem; and the textile quota category is 620.

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 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.

Sincerely,

Myles B. Harmon, Director

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