CLA-2 CO:R:C:T 951374 jb
Mr. Greg Roskies
Huntingdon Mills Ltd.
C.P. 520 P.O. Box
Huntingdon- Quebec JOS 1H0
Canada
RE: Request for reconsideration of Headquarters Ruling (HQ)
089844; fabric properly classified as pile fabric;
subheading 6001.22.0000, HTSUSA.
Dear Mr. Roskies:
This is in response to your letter, dated March 13, 1992,
requesting reconsideration of HQ 089844, dated November 22, 1991,
regarding classification of a knitted, brushed fabric. A sample
was submitted to this office for examination (additional samples
of different fabrics were also submitted for purposes of
comparison, but are not important to the determination of this
issue). Upon further review that classification is deemed to be
correct and therefore affirmed.
FACTS:
HQ 089844 was issued in response to your application for
further review of Protest Number 0712-91-000434, addressing the
issue of whether certain knitted, brushed fabric should be
considered knit fabric or pile fabric. The fabric was ruled to
be a knitted looped-pile fabric in subheading 6001.22.0000,
HTSUSA. You disagree with this classification and propose
instead, classification in subheading 6002.93, HTSUSA, under
other knitted fabrics, of man-made fibers.
The fabric at issue, Style number 5448-OSC, consists of a
100 percent knitted base material, or pre-cursor fabric, into
which acrylic yarns are laid-in or inserted during the knitting
process. The laid-in yarns protrude from the base material and
can be removed, leaving a plain knit fabric. The inserted yarns
are brushed after the knitting process to produce a "plush"
appearance.
You state in your letter that the fabric in question does
not fall into the category or descriptions of heading 6001,
HTSUSA, and is therefore excluded from that heading, mandating
classification in heading 6002, HTSUSA. You base that position
on the belief that none of the four methods of production
outlined by the Explanatory Notes to the Harmonized Commodity
Description and Coding System (EN), to heading 6001, HTSUSA,
accurately describe the knitting procedure that is involved in
the production of Style number 5448-OSC.
In particular, you address EN (4) to heading 6001, HTSUSA,
which was discussed in HQ 089844 as accurately describing the
fabric in question. You state that EN (4) to heading 6001,
HTSUSA, is limited in its application to a discussion of
imitation terry fabrics. You illustrate this point by describing
in detail how terry or imitation terry is made, and offer various
exhibits (A-E) of terry and fleece fabrics to support your claim.
You conclude that Style number 5448-OSC is excluded from heading
6001, HTSUSA, by virtue of the fact that it does not have the
requisite characteristics of the terry fabric, namely:
1. the loops which are formed
2. the horizontal stretch characteristic
3. the impossibility of removing those loops from the fabric
ISSUE:
Whether the fabric in question is classifiable under a
provision for pile fabrics, in heading 6001, HTSUSA, or under a
provision for other knitted or crocheted fabrics in heading 6002,
HTSUSA?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA), is in
accordance with the General Rules of Interpretation (GRI). The
GRI require that classification be determined according to the
terms of the headings and any relative section or chapter notes,
taken in order. Where goods cannot be classified solely on the
basis of GRI 1, the remaining GRI will be applied in the order of
their appearance.
The competing headings in this reconsideration of HQ 089844
are heading 6001, HTSUSA, which provides for pile fabrics,
knitted or crocheted, and heading 6002, HTSUSA, which provides
for other knitted or crocheted fabrics.
The definition of napped and pile fabrics for tariff
purposes was stated in Tilton Textile Corp. v. United States, 77
Cust. Ct. 27, C.D. 4670 (1976), aff'd 65 CCPA 18, C.A.D. 119
(1977):
What 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". These loops if cut then form a "cut pile."
In Tilton, both the lower and appellate courts specifically
held that for a fabric to be classifiable as pile fabric (under
the previous tariff, the Tariff Schedules of the United States
(TSUS)), it must have a raised pile. In addition, the appellate
court found that flat floating yarns which, when cut, would
create a pile, was not sufficient to cause that fabric to be
considered an "unfinished" pile fabric unless it could be shown
that the fabric in its uncut condition had no commercial value.
While the classification of articles under the TSUS is not
determinative of the proper classification of those same articles
under the HTSUSA, we have not found a valid reason to deviate
from the distinction between napped and pile fabrics drawn by
Tilton for this particular class of fabrics (i.e., those in
heading 6001).
Unlike prior tariffs, there were no legislative hearings
concerning the individual headings or subheadings contained in
the HTSUSA. As such, legislative history for the HTSUSA is
virtually nonexistent. The EN thus serve as the only official
interpretation of the Harmonized System, providing a commentary
on the scope of each of its headings.
In this area the EN are not explicit but they do indicate
that for a fabric to be classifiable as a pile fabric, it must
have protruding yarns (or their equivalent). The EN for heading
6001, HTSUSA, enumerate the following methods of production as
those mainly used for knit pile fabrics:
(1) a circular knitting machine produces a knitted fabric in
which, by means of an additional yarn, protruding loops
are formed; afterwards the loops are cut to form pile
and thus give a velvet-like surface;
(2) a special warp knitting machine knits two fabrics face
to face with common pile yarn; the two fabrics are then
separated by cutting to produce two knitted fabrics with
a cut pile;
(3) textile fibres from a carded sliver are inserted into
the loops of a knitted ground fabric as it is formed
("long pile" fabrics);
(4) textile yarn to form loops ("imitation terry fabrics")
(see General Explanatory Note). Such fabrics have rows
of chain stitches on the back of the fabric and they
differ from the pile fabrics of heading 58.02, which are
characterized by rows of stitches having the appearance
of running along the length of the back of the fabric.
(Emphasis added).
The fabric at issue consists of laid-in yarns, forming
loops, inserted during the knitting process (and which protrude
from the base material), which are later brushed.
EN (4) to heading 6001, HTSUSA, refers to the fabric at
issue. The fact that it is not constructed in the same way as
traditional terry-knit material does not exclude it from heading
6001, HTSUSA; the constructions described in the EN are intended
as examples, not as an exhaustive listing.
In view of the EN to heading 6001, HTSUSA, it is apparent
that the process involved in the production of the fabric is the
governing factor in ascertaining whether that fabric is
classifiable as a pile fabric.
Accordingly, if during the weaving or knitting of a fabric,
yarns are caused to project from the surface(s) (i.e., the base
material) of that fabric creating a "pile" appearance, that
fabric will be considered a pile fabric for the purposes of the
HTSUSA, even if those yarns are subsequently subjected to a
brushing process. However, if a fabric is woven or knit without
projecting yarns which create a "pile" surface or surfaces, and
that "pile" appearance is later produced by a brushing,
teaseling, or similar process, then the fabric is not considered
to be a pile fabric for the purposes of the HTSUSA.
The fabric at issue is similar in its construction to the
fabric discussed in HQ 084317, dated May 21, 1990. The fabric in
HQ 084317 was a napped pile fabric in which short protruding
loops were formed by a laid-in yarn. The laid-in yarn could be
removed leaving a plain knit fabric. The finished fabric was
produced by raising fibers from the laid in yarns, which were not
necessary to the integrity of the basic fabric. The base
material had protruding loops that were still clearly visible in
the finished fabric, and that made it similar in appearance to
terry cloth. The fabric was classified in subheading
6001.22.0000, HTSUSA.
It should be noted that it is the basic construction of the
fabric, i.e., the presence of an additional yarn to form
protruding loops that precedes the brushing, which makes this a
pile fabric. A brushed fabric that did not have these protruding
loops in the base material (i.e., a fabric in which the base
material itself was brushed), even if it had a similar
appearance, would not be a pile fabric.
Accordingly, Style number 5448-OSC is a pile fabric as
provided for in heading 6001, HTSUSA.
HOLDING:
The submitted fabric, Style number 5448-OSC, was properly
classified in HQ 089844, under the provision for knitted looped-
pile fabric, in subheading 6001.22.0000, HTSUSA. The applicable
rate of duty is 19.5 percent ad valorem. The textile category is
224.
The designated textile and apparel category may be
subdivided into parts. If so, visa and quota requirements
applicable to the subject merchandise may be affected. Since
part categories are the result of international bilateral
agreements which are subject to frequent negotiations and
changes, to obtain the most current information available, we
suggest that you check, close to the time of shipment, the Status
Report on Current Import Quotas (Restraint Levels), an issuance
of the U.S. Customs Service, which is updated weekly and is
available at the local Customs office.
Due to the changeable nature of the statistical annotation
(the ninth and tenth digits of the classification) and the
restraint (quota/visa) categories, you should contact the local
Customs office prior to importing the merchandise to determine
the current status of any import restraints or requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division