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NY N022036




February 1, 2008

CLA-2-58:OT:RR:NC:TA:352

CATEGORY: CLASSIFICATION

TARIFF NO.: 5801.36.0020

Ms. Lara A. Austrins
Rodriquez O’Donnell Gonzalez & Williams, P.C. 8430 West Bryn Mawr Avenue. Suite 525
Chicago, IL 60631

RE: The tariff classification and status under the North American Free Trade Agreement (NAFTA), of three 100% man-made fiber woven chenille upholstery fabrics from Mexico; Article 509

Dear Ms. Austrins:

In your letter dated January 11, 2008, on behalf of your client Tietex International, Ltd., you requested a ruling on the status of three woven chenille upholstery fabrics and one jacquard woven upholstery fabric from Mexico under the NAFTA. Since the classification and status under the NAFTA is in dispute for the jacquard woven upholstery fabric designated as Style “Geraldine” # 65403, this ruling will only address the classification and status under the NAFTA for the three woven chenille fabrics designated as styles “Primavera # 65707, “Macarena” # 65588 and “Staccato II EA” #65273. The classification and status under the NAFTA for style “Geraldine” # 65403 will be forwarded to our Headquarters Office under reference N022522 for their review and response.

Style “Primavera” # 65707 is a jacquard woven chenille fabric composed of 51% polyester, 35% acrylic, 8% rayon and 6% olefin. It is characterized by a highly textured fibrous surface created by the insertion of acrylic chenille yarns during the weaving process. Constructed with yarns of different colors, this fabric features a design incorporating rectangles of various sizes, colors and textures produced by the variations in the color and texture of the yarns from which it is woven. Weighing 407 g/m2, this product will be imported in 137 centimeter widths. It has been coated on one side with acrylic plastic to stiffen and stabilize the fabric. The plastic coating represents approximately 12% of the total weight of the fabric. Your correspondence indicates that his fabric will be marketed as an upholstery fabric.

Style “Primavera” # 65707 will be woven and coated with plastic in Mexico. The yarns that are incorporated into this product are wholly produced in the United States with the exception of the acrylic chenille yarns and some of the rayon novelty yarns. The acrylic chenille yarns are produced in Romania from fiber extruded and cut into staple fiber in Germany. These yarns represent approximately 35% of the weight of the fabric. Based on the samples provided these yarns are classifiable as chenille yarns of subheading 5606.00.0090, HTS. The rayon novelty yarns that are not produced in the United States are wholly produced in Indonesia and represent less than 1% of the weight of the fabric. Based on the samples provided the rayon yarns are classifiable under the provision for yarns (other than sewing thread) of artificial staple fibers, not put up for retail sale, containing 85 percent or more by weight of artificial staple fibers, multiple (folded) or cabled yarn in subheading 5510.12.0000, HTS

Style “Macarena” # 65588 is a woven chenille fabric composed of 96.7% textured filament polyester and 3.3% acrylic. It is characterized by a complex interlacing pattern with a stylized floral motif. Inserted into the filling during the weaving process are a number of chenille yarns that form the stems of the foliage that form the fabric’s design. The chenille yarns accent the design and add textural interest to the fabrics overall design. Weighing 268 g/m2, this fabric will be imported in 137 centimeter widths. This product has been coated on the back with an application of acrylic plastic to stiffen and stabilize it. The plastic application represents approximately 9% of the total weight of the fabric. Your correspondence indicates that this product will be marketed as an upholstery fabric.

Style “Macarena” # 65588 will be woven and coated with plastic in Mexico. The fabric is finished in Mexico and is subjected to a softening process among other finishing steps. The yarns that are incorporated into this product are wholly produced in the United States with the exception of the acrylic chenille yarns. The acrylic chenille yarns are produced in Romania from fiber extruded and cut into staple fiber in Germany. These yarns represent approximately 3.3% of the weight of the fabric. Based on the samples provided these yarns are classifiable as chenille yarns of subheading 5606.00.0090, HTS.

Style “Staccato II EA” # 65273 is a woven chenille fabric composed of 47.2% textured filament polyester, 43.8% acrylic and 9% textured filament olefin. It is characterized by a dense fibrous surface created by the insertion of chenille yarns in the filling during the weaving process. Weighing 400 g/m2, this product will be imported in 137 centimeter widths. The back of the fabric has been coated with an application of acrylic plastic to stiffen and stabilize it. The plastic coating represents approximately 11% of the total weight of the fabric. Your correspondence indicates that this product will be marketed as an upholstery fabric.

Style “Staccato II EA” # 65273 will be woven and coated with plastic in Mexico. The fabric is finished in Mexico and is subjected to a softening process among other finishing steps. The yarns that are incorporated into this product are wholly produced in the United States with the exception of the acrylic chenille yarns. The acrylic chenille yarns are produced in Romania from fiber extruded and cut into staple fiber in Germany. These yarns represent approximately 43.8% of the weight of the fabric. Based on the samples provided these yarns are classifiable as chenille yarns of subheading 5606.00.0090, HTS.

Your analysis indicates that it your belief that these three fabrics are classifiable in subheading 5903.90.2500, HTS, under the provision for textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902, other of man-made fibers, other , other. However, classification in this subheading is not possible.

Note 1 to chapter 59 sets forth the meaning of “textile fabrics” for the purposes of chapter 59. It states:

Except where the context otherwise requires, for the purposes of this chapter the expression “textile fabrics” applies only to the woven fabrics of chapters 50 to 55 and headings 5803 and 5806, the braids and ornamental trimmings in the piece of heading 5808 and the knitted and crocheted fabrics of headings 6002 to 6006.

Since the three woven chenille fabrics before us for consideration are classifiable as woven chenille fabrics of heading 5801 if not coated, Note 1 to chapter 59 excludes these fabrics when coated with plastic from classification under the provision for textile fabrics impregnated, coated, covered or laminated with plastics in subheading 5903, HTS.

The applicable tariff provision for the three woven chenille upholstery fabrics designated as styles “Primavera” # 65707, “Macarena” # 65588 and “Staccato II EA” # 65273 will be 5801.36.0020, Harmonized Tariff Schedule of the United States (HTSUS), which provides for woven pile fabrics and chenille fabrics, other than fabrics of heading 5802 or 5806, of man-made fibers, chenille fabrics, other. The general rate of duty will be 9.8 percent ad valorem.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.

These three fabrics fall within textile category 224. With the exception of certain products of China, quota/visa requirements are no longer applicable for merchandise which is the product of World Trade Organization (WTO) member countries. Quota and visa requirements are the result of international agreements that are subject to frequent renegotiations and changes. To obtain the most current information on quota and visa requirements applicable to this merchandise, we suggest you check, close to the time of shipment, the “Textile Status Report for Absolute Quotas” which is available on our web site at www.cbp.gov. For current information regarding possible textile safeguard actions on goods from China and related issues, we refer you to the web site of the Office of Textiles and Apparel of the Department of Commerce at otexa.ita.doc.gov.

General Note 12(b), HTSUS, sets forth the criteria for determining whether a good is originating under the NAFTA. General Note 12(b), HTSUS, (19 U.S.C. § 1202) states, in pertinent part, that

For the purposes of this note, goods imported into the customs territory of the United States are eligible for the tariff treatment and quantitative limitations set forth in the tariff schedule as "goods originating in the territory of a NAFTA party" only if--

(i) they are goods wholly obtained or produced entirely in the territory of Canada, Mexico and/or the United States; or

(ii) they have been transformed in the territory of Canada, Mexico and/or the United States so that--

(A) except as provided in subdivision (f) of this note, each of the non-originating materials used in the production of such goods undergoes a change in tariff classification described in subdivisions (r), (s) and (t) of this note or the rules set forth therein, or

(B) the goods otherwise satisfy the applicable requirements of subdivisions (r), (s) and (t) where no change in tariff classification is required, and the goods satisfy all other requirements of this note; or

(iii) they are goods produced entirely in the territory of Canada, Mexico and/or the United States exclusively from originating materials; or

(iv) they are produced entirely in the territory of Canada, Mexico and/or the United States but one or more of the nonoriginating materials falling under provisions for "parts" and used in the production of such goods does not undergo a change in tariff classification because--

(A) the goods were imported into the territory of Canada, Mexico and/or the United States in unassembled or disassembled form but were classified as assembled goods pursuant to general rule of interpretation 2(a), or

(B) the tariff headings for such goods provide for and specifically describe both the goods themselves and their parts and is not further divided into subheadings, or the subheadings for such goods provide for and specifically describe both the goods themselves and their parts,
provided that such goods do not fall under chapters 61 through 63, inclusive, of the tariff schedule, and provided further that the regional value content of such goods, determined in accordance with subdivision (c) of this note, is not less than 60 percent where the transaction value method is used, or is not less than 50 percent where the net cost method is used, and such goods satisfy all other applicable provisions of this note.

Based on the facts provided, the goods described above qualify for NAFTA preferential treatment, because they will meet the requirements of HTSUS General Note 12(b) (ii) (A). The goods will therefore be entitled to a free rate of duty under the NAFTA upon compliance with all applicable laws, regulations, and agreements.

This ruling is being issued under the provisions of Part 181 of the Customs Regulations (19 C.F.R. 181).A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Alan Tytelman at 646-733-3045.

Should you wish to request an administrative review of this ruling, submit a copy of this ruling and all relevant facts and arguments within 30 days of the date of this letter, to the Director, Commercial Rulings Division, Headquarters, U.S. Customs and Border Protection, 1300 Pennsylvania Ave. N.W., (Mint Annex), Washington, D.C. 20229.

Sincerely,

Robert B. Swierupski
Director,

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