CLA-2 CO:R:C:T 952804 PR
Mr. Sooseong Park
Lee Company
137 Eucalyptus Drive
El Segundo. CA. 90245
RE: Classification of knit fabrics with laid-in metalized strips
and Mylar sequins--Held not pile fabrics and not covered or
coated with plastics
Dear Mr. Sooseong:
This is in reply to your letter of September 28, 1992, on
behalf of One Way Textile, Inc., concerning the classification of
two sample fabrics. Our ruling on the matter follows.
FACTS:
The sample fabrics appear identical except for color. Our
National Import Specialist describes them as follows:
. . . two samples of nylon jersey knitted fabrics. Both
have laid-in metalized strips which are approximately 0.5 mm
in width. If these laid-in yarns are removed, the base
fabrics maintain their structural integrity. The laid-in
yarns form loops visible on the surface of the materials, and
they protrude slightly from the fabric surface. Both of these
fabrics have metalized Mylar circular dots 6 mm in diameter.
They appear to have been attached by means of an adhesive.
They are evenly spaced, separated from each other by
approximately 2 mm in both the warp and the weft directions,
and present a uniform geometric pattern on the fabric surface.
The "loops" described by the National Import Specialist are,
in actuality, loose floats.
The merchandise at issue is described in the inquiry as
follows:
1. Description of the article: American knit with transcolor
plain dyed -2-
2. Composition of material:
Ground: Metallic knit fabric P/D 44/5"
Nylon F. Yarn 70D(S/D) .... 70gr/YD
Polyester film S-300 metallized
All coated 12U/80CUT ..... 30 gr/YD
Total weight: 100gr/YD
Acc. : 6mm Transfer sequins...45gr.yd
G. Total weight: 145gr/yd
ISSUE:
The primary issued presented is whether the sample fabrics are
classifiable as knit pile fabrics under heading 6001, Harmonized
Tariff Schedule of the United States Annotated (HTSUSA), or as
other knit fabrics in under heading 6002, HTSUS. If it is
determined that the fabrics are not classifiable as pile fabrics,
then an ancillary issue arises--whether the fabrics are
classifiable as fabrics coated or covered with plastics, under
heading 5903, HTSUS.
LAW AND ANALYSIS:
HR 068507, dated November 18, 1981, which was issued under the
Tariff Schedules of the United States (TSUS), the predecessor to
the HTSUS, concerned the question of whether a napped knit fabric
with laid-in yarns was classifiable as a pile fabric. That ruling
concerned a three bar warp knit fabric with two nylon yarns and a
triacetate yarn. Although not specifically stated, it is clear
that the triacetate yarn was not necessary to the stability of the
fabric since those yarns were completely broken by a series of
brushing processes. There we stated:
The importer cites Tilton Textile Corp. v. United States,
77 Cust. Ct. 27, C.D. 4670 (1976), aff'd 65 CCPA 18,
C.A.D. 119 (1977), and Merry Mary Fabrics, Inc. v. United
States, 1 C.I.T. [13], Slip Op. 80-3 (1980), in support
of the proposition that the classification of a fabric
under the provisions for pile fabrics in the tariff
schedules depends on the construction of that fabric.
* * * Tilton was concerned with the classification
of uncut velveteen material. There, the court held that
in its uncut condition, the merchandise did not
constitute a pile fabric but, once cut, the fabric would
become a velveteen [pile] fabric.
* * *
In Tilton, both the lower and appellate courts specifically
held that for a fabric to be classifiable as pile fabric (under the
TSUS), it must have a raised pile. In addition, the appellate court
found that flat floating yarns which, when cut, would create a pile -3-
was not sufficient to cause that fabric, in its uncut condition,
to be considered an "unfinished" pile fabric unless it could be
shown that the fabric, in its uncut condition, had no commercial
value.
Under the HTSUS pile fabrics are classifiable primarily under
four headings--(1) 6001, which provides for knit pile fabrics; (2)
5806, which provides for woven narrow fabrics; (3) 5802, which
provides for woven terry fabrics; and (4) 5801 which provides for
all woven pile fabrics not provided for in headings 5802 and 5806.
The classification of articles under the TSUS is not
determinative of the proper classification of those same articles
under the HTSUS. However, we believe that there must exist a valid
reason to deviate from the distinction between napped and pile
fabrics drawn by Tilton, supra, Merry Mary, supra, and HR 084317,
supra. In this area, such a reason exists only for a single
specified class of fabrics. Note 2, Chapter 58, HTSUS, wherein
headings 5801, 5802, and 5806 are located, provides:
Heading 5801 also includes woven weft pile fabrics which
have not yet had the floats cut, at which stage they have
no pile standing up.
Note 2 is very specific. It applies to a single class of
fabrics, which include, e.g. uncut corduroys and uncut velveteens,
but does not include such fabrics as uncut velvets. The fact that
the HTSUSA provides a limited exception is a clear statement by the
drafters that all other uncut pile-to-be fabrics which do not have
protruding yarns were not intended to be classifiable under the
provisions for pile fabrics.
The Explanatory Notes to the Harmonized Commodity Description
and Coding System, the official interpretation of the HTSUS at the
international (six digit) level, are in accord with this
conclusion. The Explanatory Notes for Heading 6001, HTSUS, where
knit pile fabrics are classifiable, provide the following
descriptions of the types of fabrics classifiable in Heading 6001:
(1) a circular knitting machine produces a knitted
fabric in which, by means of an additional yarn,
protruding loops are formed . . .
(2) a special warp knitting machine knits tow fabrics
face to face with a common pile yarn . . .
* * *
(4) textile yarn to form loops ("imitation terry
fabrics") . . .
(at page 827; italics added) -4-
In addition, the Explanatory Notes for heading 5801, under
which woven pile fabrics are classifiable, specifically state that
"Woven pile fabrics are composed of at least three series of
threads: tight warp and weft forming the ground fabric and a warp
or weft forming a pile." (at page 792; italics added)
The Explanatory Notes for Headings 5801 and 6001 reinforce the
necessity of Chapter 58 Note 2. Without that note, uncut woven
weft pile-to-be fabrics (e.g. uncut corduroys) would not be
classifiable as pile fabrics.
Accordingly, except for fabrics subject to the provisions of
Chapter 58 Note 2, if, during the weaving or knitting of a fabric,
yarns are caused to project sufficiently from the surface(s) of
that fabric creating a "pile" appearance, then that fabric is
classifiable as a pile fabric under the HTSUS. However, if a
fabric is woven or knit without projecting yarns which create a
"pile" surface or surfaces, even if a "pile" appearance is later
produced by a brushing, teaseling, or similar process, then that
fabric is not classifiable as a pile fabric under the HTSUS.
A significant problem is left unanswered by the above--how
high must yarns project from the surface of a fabric for them to
constitute a "pile"? While we realize that an objective standard
is desirable and easily enforceable, we have been unable ascertain
any objective criterion which may be applied in determining if a
pile exists. In our view, a fabric may classified as a "pile
fabric" only if it is commonly or commercially accepted as such.
Applying this standard to the instant samples, based on our own
observation and on the advice of our National Import Specialist,
the instant fabrics would not be commercially or commonly accepted
as "pile". The loose floats formed by the laid-in yarns do not
project sufficiently to change the identity of those fabrics.
In regard to whether an uncut pile fabric may be classified
as an unfinished pile fabric, General Rule of Interpretation (GRI)
2(a), HTSUS, provides:
Any reference in a heading to an article shall be taken
to include a reference to that article incomplete or
unfinished, provided that, as entered, the incomplete or
unfinished article has the essential character of the
complete or finished article.
Following the court in Tilton, supra, a fabric without a
raised pile surface, which has a real commercial value in that
condition, does not have the essential character of a pile fabric.
Therefore, it would not be classifiable as an unfinished pile
fabric. Obviously, the sample fabrics with plastic sequins have
no commercial value as pile fabrics. Accordingly, they are not
considered to be "unfinished" pile fabrics. -5-
In regard to classification of the subject fabrics as plastics
coated or covered fabrics under heading 5903, HTSUS, Note 2(a)(4)
to Chapter 59, HTSUS, provides that fabrics "partially coated or
partially covered with plastics and bearing designs resulting from
these treatments" are not classifiable under heading 5903. In our
view, the large, readily visible sequins form a geometric design,
precluding the classification of those fabrics under heading 5903.
HOLDING:
The subject fabrics, when imported in material lengths, are
classifiable under the provision for other knitted fabrics of man-
made fibers, in subheading 6002.93.0080, HTSUSA, textile restraint
category 222, with duty, as a product of South Korea, at the 1993
rate of 14 percent ad valorem.
Due to the changeable nature of the statistical annotation
(the ninth and tenth digits of the classification) and the
restraint (quota/visa) categories applicable to textile
merchandise, you should contact your local Customs office prior to
importation of this merchandise to determine the current status of
any import restraints or requirements.
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 renegotiations 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 internal issuance of the U.S. Customs Service, which
is available for inspection at your local Customs office.
Sincerely,
John Durant, Director
Commercial Rulings Division
6cc: Area Director, New York Seaport
1cc: CITA
1cc: Dick Crichton--OTO
1cc: Cynthia Reese
1cc: file 952803 (to accompany outgoing ruling)
MEMO TO FILE
I called NIS Jeff Konset and asked him if, in the real world,
these fabrics are known as pile fabrics. He stated that they were
not commonly or commercially known as pile fabrics--he had
recommended classification as such only for the sake of uniformity.
He was following our ruling in 089844, dated 11/22/91.
I discussed the matter with H. Volenick, who agreed that
089844 should be modified. I called Mary Walsh at OTEXA and told
him that we were intending to modify a prior ruling. I described
the merchandise and explained our position. He indicated that
there should be no problem since the two concerned categories are
grouped, and that he would accept our judgement on the matter.
PLRobins
1/29/93