CLA-2 CO:R:C:T 953997 jb
District Director
U.S. Customs Service
9901 Pacific Highway
Blaine, WA. 98230
RE: Decision on Application for Further Review of Protest
No.3004-93100018; fabric in question is not upholstery fabric;
eight factors examined; fabric did not pass critical abrasion
resistance test; proper classification in 5112.19.9060, HTSUSA
Dear Sir,
This is a decision on application for further review of a
protest timely filed on behalf of Canadian Airlines
International, on February 11, 1993, against your decision
regarding the classification of worsted wool fabric. All entries
were liquidated on January 29, 1993. A sample was provided to
this office for examination.
FACTS:
The merchandise at issue consists of a navy, blue and red
100 percent worsted wool woven fabric. It weighs 425.37 g/sq.
meter and according to the tests performed by the U.S. Customs
Laboratory in Savannah, it does not meet the minimum surface
abrasion requirements for light-duty woven wool upholstery fabric
as specified by the American Society of Testing Materials (ASTM)
3597-89.
It is your position that since the fabric does not meet the
ASTM standard, the article does not belong to the class or kind
of fabrics principally used as upholstery fabric. Accordingly,
the fabric was liquidated in subheading 5112.20.3000, HTSUSA,
which provides for other woven fabrics of combed wool or of
combed fine animal hair, mixed mainly or solely with man-made
filaments. Subsequent to that liquidation, Customs laboratory
analysis indicated that the fabric should be classified in
5112.19.9060, HTSUSA, which provides for other woven fabrics of
combed wool or of combed fie animal hair, containing 85 percent
or more by weight of wool or fine animal hair, weighing more than
340 g/sq. meter. The importer contends that the woven woolen
fabric is classifiable as an upholstery fabric of worsted wool
mixed mainly or solely with man-made filament in subheading
5112.20.2000, HTSUSA.
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is in
accordance with the General Rules of Interpretation (GRI), taken
in order. GRI 1 requires 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.
Additional U.S. Rule of Interpretation 1(a) states:
a tariff classification controlled by use (other than actual
use) is to be determined in accordance with the use in the
United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported
goods belong, and the controlling use is the principal use;
Although the provision for upholstery fabric in subheading
5112.19.2000, HTSUSA, does not explicitly mention use, it is our
belief that this type of fabric is a use provision. In E.C.
Lineiro v. United States, 37 CCPA 10, CAD 411, (1949), the court
stated that "a designation by use may be established, although
the word 'use' or 'used' does not appear in the language of the
statute." As such, it is the use of the class or kind of
merchandise to which the imported article belongs which must be
determined, not the use of the instant merchandise.
Although the introduction of the HTSUSA changed the concept
of use from chief use to principal use (chief use requiring that
the use exceed all other uses combined, and principal use
requiring that the use exceed each other use), it is still
informative to see how courts interpreted the former statute
since the wording regarding class or kind is nearly identical.
In United States v. Colibri Lighters (USA), Inc, 47 CCPA 106, CAD
739, (1960), in discussing the concept of chief use the Appeals
Court stated that in addition to the characteristics of the
merchandise itself, classification should be based on the chief
use of the articles of that class generally and not on the basis
to which the individual articles should be put. In Pistorino &
Co., Inc. v. United States, 67 CCPA 1, CAD 1234 (1979), the court
therein also observed that what has to be determined is the chief
use of the class or kind of merchandise.
Further support comes from United States v. the Carborundum
Company, 63 CCPA 98, CAD 1172 (1976), in which, in determining
whether merchandise is encompassed by a particular class or kind
of merchandise, the court considered the general physical
characteristics of the merchandise, the channel of trade, and the
economic practicality of the "use" of the imported merchandise.
Though there is no one set of physical characteristics to
which experts in the upholstery trade adhere to in distinguishing
upholstery fabrics from other types of fabric, there are several
broad categories of characteristics which when taken in
combination define the class of upholstery fabrics. In HQ
075883, dated January 7, 1985, a response to an internal advice
request concerning the tariff classification of woven wool
fabrics claimed to be upholstery fabrics, eight physical
characteristics were considered in an attempt to distinguish
upholstery fabrics as a class from other general purpose wool
fabrics. These characteristics included weight, abrasion
resistance, width, color and design, patterns location, fiber
content, yarn twist, and surface characteristics. Similarly, in
HQ 084311, dated August 27, 1990, virtually the same criteria was
adopted to establish guidelines in a determination of whether
wool fabric was upholstery fabric.
The first factor is weight. In general, as a result of the
demand for increased utility and longevity of the fabric,
upholstery fabrics are often designed to last ten years or more.
Consultation with our National Import Specialist has indicated
that most woolen upholstery fabrics are over 350 g/sq. meter
(10.3 ounces per square yard). The subject fabric weighs 425.37
g/sq. meter. Though this weight is consistent with fabrics used
for upholstery, it is not definitive proof since fabric used for
overcoats, winter weight suits and other cold climate wear are
often this heavy or heavier.
The second criteria is abrasion resistance. This is one of
the most important characteristics in evaluating the suitability
of a fabric for use as upholstery since these products are
constantly subjected to the wear of fabric against fabric. ASTM
D 3597-89 has been adopted by Customs as the proper test method
which sets forth the abrasion standards for woven upholstery
fabrics. To test for abrasion resistance, it designates the use
of a wire screen as the abradant, and rubbing the wire screen on
at least two samples in the warp direction and at least two in
the filling direction. ASTM D 3597-89 further states:
At the end of 3000 cycles (double rubs) examine the
specimens for loose threads and wear...If no noticeable change
is apparent, continue the test for another 6000 cycles (a
total of 9000 cycles). Examine the specimen again. If no
noticeable change is apparent, continue the test for another
6,000 cycles (a total of 15,000 cycles).
Classify fabrics that show no noticeable wear after 3000
cycles but show appreciable wear at 9000 cycles as light-duty.
Classify fabrics that show no appreciable wear at 9000 cycles but appreciable wear at 15000 cycles as medium duty.
Classify fabrics that show no noticeable wear at 15000
cycles as heavy-duty.
Though the protestant did provide data on abrasion
resistance, the testing submitted is not in keeping with the
testing specifically adopted by Customs for upholstery fabric.
The importer submitted the results of ASTM D 4966-89, also
referred to as the Martindale Abrasion Tester Method. In The
1993 Annual Book of ASTM Standards, Vol. 07.02, Textiles, 699
(1993), under the caption reading "Significance and Use", the
Martindale Abrasion Tester Method states:
This test method is not considered satisfactory for
acceptance testing of commercial shipments of fabric. The
between-laboratory precision of the test method is poor and, because of the nature of abrasion testing itself,
technicians frequently fail to obtain results in agreement on the
same type of testing instrument, both within and between
laboratories.
Consultations with our Customs laboratory technicians have
confirmed the above opinion. The Martindale test, a simple
abrasion resistance test for textile fabrics, is neither a
stringent nor accurate method for testing upholstery fabrics. It
is the unreliability of this test that led to Customs' use of the
more specific, ASTM D 3597-89 for the testing of upholstery
fabrics. When the Customs laboratory in Savannah, Georgia,
tested the upholstery fabric according to the indications of ASTM
3597-89 (a test specifically designed for upholstery fabrics),
results indicated that the fabric failed to meet the minimum
standard for light domestic use. The Savannah laboratory
concluded that even after only the minimum 3000 double rubs, the
fabric did not meet the standards for "light-duty".
The third criteria is width of the fabric. A width of 54
inches is generally associated with the upholstery trade while a
width of 59 to 60 inches is usually associated with fabric used
in the apparel trade. Though this criteria is also not
definitive, the fact that the subject article is imported in 50
inch widths, is further evidence that the fabric may not belong
to the class or kind of fabric chiefly used as upholstery fabric.
The fourth and fifth criteria refer to the physical
characteristics of the fabric, i.e., color, design, and pattern
location. Upholstery fabrics display a wide range of colors and
designs, but in general are characterized by more complex weave
patterns, larger yarns and textured surfaces and unusual color
combinations. There is nothing about the subject sample that
specifically indicates use as upholstery fabric. The weave
pattern is simple, the surface is not textured and the color
combinations, consisting of navy blue, blue and red, are very
basic.
The sixth factor is fiber content. Though not
determinative, the Wool Bureau, a trade organization for the wool
industry, in establishing its standards for wool upholstery
fabrics which have been blended with other fibers requires a
minimum of 70 percent wool. The rationale given is that wool
exhibits a unique natural resistance to flammability. The fact
that this fabric is 100 percent wool does not shed significant
light on whether this fabric belongs to the class or kind of
fabric used as upholstery fabric.
The seventh factor deals with yarn twist. Upholstery fabrics
are often constructed with yarns which have higher twists than
apparel fabric. Although the Savannah laboratory did not test
for this characteristic, the fact that the fabric failed the
abrasion test might imply that the fabric has yarns of low twist.
In addition, the subject sample we examined appears very
drapeable, similar to what one would find in an apparel fabric.
The last physical factor is surface characteristics.
Upholstery fabrics are often chemically treated to prevent
pilling. The information received by us shows no evidence that
this fabric has been treated to achieve this end.
In addition to the characteristics mentioned above, there
are several other factors we feel are important indicators of
upholstery fabrics. Special finishes for retarding flammability
are in general associated with upholstery fabrics. There are, in
general, only government regulations on the flammability of two
classes of textiles. These two classes are home furnishing
fabrics (upholstery) and children's nightwear. There is no
evidence that the fabric in this case has been so treated, though
the protestant claims that this fabric has been fire blocked.
However, a fabric of 100 percent wool may still pass flammability
standards based solely on its fiber content.
Another physical characteristic typical of upholstery fabric
is a plastic coating which both stabilizes the yarns and
increases the stiffness of the fabric so that it is more
malleable. In addition, wool upholstery fabrics, unlike wool and
wool blend apparel fabrics are often treated with chemicals to
moth proof them. Finally, upholstery fabrics are often treated
to harden the surface. Again, no evidence was submitted to
reflect such treatment of the fabric.
HQ 075883 also examined other factors in determining whether
a fabric is chiefly used as upholstery fabric. One such criteria
is the economic practicality of using the import for the purpose
desired. Upholstery fabrics are more expensive than general
purpose fabrics for a variety of reasons. Some of these reasons
include the fact that the fabrics, in general, are heavier, woven
with more complex designs and subjected to a variety of finishes
to improve their physical qualities. In addition, upholstery
fabrics, because of their unique designs and color combinations,
are usually manufactured in much smaller quantities than apparel
fabrics. As such, the manufacturers are not able to reap the
benefits of economy of scale in the production of these fabrics.
The average margin on wool upholstery fabrics is higher than on
apparel or general purpose fabrics because of the limited sales
potential of any given design. The fabric at issue costs $32.50
per yard. This price is consistent with the prices for most wool
upholstery fabrics, however, it is not inconsistent with the
prices of the more expensive wool apparel fabrics. Thus, the
cost of this fabric does not present an economic preclusion to
its use as either fabric for upholstery or apparel purposes.
Though the importer claims that the fabric is manufactured,
bought and sold exclusively for the upholstery trade, no evidence
was provided to help ascertain the channels of trade through
which this merchandise moves. While we have no doubt that the
fabric will be used to upholster airline seats as claimed, it
remains that the fabric must be shown to be a member of the class
or kind of fabric that is principally used as upholstery fabric
and not merely that this particular fabric will be used in that
capacity.
A determination as to whether this fabric belongs to the
class or kind of fabric used as upholstery fabric must be based
on a combination of the various factors that define the class. Though no single criteria is definitive, there are several
factors which lead us to the determination that this fabric is
not in the class or kind of fabric used as an upholstery fabric.
These factors are as follows:
1. many of the physical characteristics of the fabric are
not indicative of upholstery fabric (e.g., width of the
fabric, color and design, pattern location)
2. the fabric failed to pass even the minimum standard for
abrasion resistance.
3. no marketing information was submitted
HOLDING:
The submitted fabric is correctly classified in subheading
5112.19.9060, HTSUSA, which provides for woven fabrics of combed
wool or of combed fine animal hair, containing 85 percent or more
by weight of wool or fine animal hair, other, other, weighing
more than 340 g/sq. meter.
The protest should be denied in full. A copy of this ruling
should be appended to the Form 19 Notice of Action and furnished
to the protestant.
Sincerely,
John Durant, Director
Commercial Rulings Division