CLA-2 RR:TC:TE 959801 jb
Gail Cumins, Esq.
Sharretts, Paley, Carter & Blauvelt, P.C
Sixty Seven Broad Street
New York, NY 10004
RE: Classification of fabrics laminated with plastic
Dear Ms. Cumins:
This is in response to your letter of November 11, 1996,
supplementing a letter dated February 28, 1996, submitted by
Barthco International on behalf of your client, W.L Gore &
Associates, Inc., requesting a binding ruling for certain fabrics
laminated with plastic. Samples of the fabrics were submitted to
this office for examination. We regret the delay in our
response.
FACTS:
The subject merchandise consists of five samples, referenced
style numbers Mflock fabric, Stealth fabric, AQ955 fabric, Quiet
Cloth fabric, and T43001 fabric, all of which, except for the
Mflock fabric, are made up of brushed 100 percent polyester knit
fabrics which have been laminated with a polytetrafluoroethylene
(PTFE) film.
The subject merchandise was examined by the Customs
laboratory which, in its report, stated that all of the fabrics,
except for the Mflock fabric, consisted of a warp knit pile
construction. Verbal consultations with the Laboratory also
reveal that all of the fabrics (except the Mflock) are knit base
fabrics which have a "loop-raised pile fabric construction" and
that this merchandise is "engineered to be pile". There seems to
be no disagreement with respect to the classification of the
Mflock fabric, that is, we agree that this fabric is a flocked
fabric classifiable in heading 5907, HTSUS. As such, this letter
will not specifically address this fabric in the analysis.
In your opinion the proper classification for this
merchandise is in heading 5903, Harmonized Tariff Schedule of the
United States (HTSUS), as textile fabrics impregnated, coated,
covered or laminated with plastics, other than those of heading
5902. In support of this classification you make reference to:
1. The Explanatory Notes to the Harmonized Commodity
Description and Coding System (EN) to heading 6001,
HTSUS;
2. The submitted samples, which you state are made of a warp
knit fabric that, after knitting, is simply
surface sanded with an abrasive roller to simulate a pile
construction before being laminated.
In a subsequent meeting held at this office you also made
reference to HQ 951111, dated October 5, 1992, as further support
for your claim that the construction of the subject merchandise
does not warrant classification as pile. We bring to your
attention that what you refer to as "HQ" 951111 is actually
"Internal Memorandum" 951111.
ISSUE:
Whether the subject merchandise is classified in heading
6001, HTSUS, which provides for pile fabrics, including "long
pile" fabrics and terry fabrics, knitted or crocheted, or heading
5903, HTSUS, which provides for, textile fabrics impregnated,
coated, covered or laminated with plastics, other than those of
heading 5902?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) is governed by
the General Rules of Interpretation (GRI's). 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's will be applied, in the order of their
appearance.
In determining the proper classification determination for
this merchandise we must analyze the construction of the fabric,
that is, the structure of the fabric at the time of the knitting
process. Heading 6001, HTSUS, provides for pile fabrics,
including "long pile" fabrics and terry fabrics, knitted or
crocheted. The EN to heading 6001, HTSUS, state that the
products of this heading are obtained by knitting. The methods
of production mainly used to knit these products are as follows:
(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
a pile and thus give a velvet-like surface;
(2) a special warp knitting machine knits two fabrics face
to face with a 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 stitches along the length of the
back of the fabric.
You are correct in your assertion that the subject
merchandise does not meet the terms of methods 1-3 for the
following reasons:
(1) the knitting process does not involve an "additional
yarn";
(2) the knitting process does not involve knitting the
fabrics "face to face";
(3) the knitting process does not involve the insertion of a
carded sliver.
However, there seems to be some question as to whether the
fourth method described by the EN, that is, textile yarns to form
loops, is an appropriate description of the knitting method for
the subject merchandise. There appear to be two schools of
thought with reference to the interpretation of the basic
construction of this merchandise. The Customs Laboratory report
indicates that the subject merchandise is "engineered to be"
pile. That is to say, in purely technical terms, the
fundamental construction of this merchandise is evidence of its
future state as a pile fabric. Although technically this
statement is correct, there is another factor to take into
consideration.
Customs has issued a number of rulings discussing a variety
of fabrics which have set forth a precedence that the future
state of the fabric, is not determinative of its classification.
In the analysis portion of these rulings it has been consistently
stated that Customs will examine the process involved in the
production of the fabric and the appearance of that fabric as the
governing factors in ascertaining whether that fabric is
classifiable as a pile fabric. In essence, the knitting process
of the fabric must result in raised loops or floats which
protrude from the surface of the base fabric. In Headquarters
Ruling Letter (HQ) 952921, dated May 7, 1993, addressing how much
a yarn should "protrude" to qualify for classification in heading
6001, HTSUS, it was determined that:
...there remains some question as to whether the loops
created by the laid-in yarn protrude enough to warrant
classification under heading 6001, HTSUSA, as a pile fabric.
It is this office's opinion that they do. The EN to heading
6001, HTSUSA, provides no quantitative guidance as to how
much loops must protrude; it only describes types of
processes which produce pile fabrics. As the fabric at
issue meets the requirements of EN(4), we are unwilling to
create quantitative prerequisites which would mandate that
looped yarn be of a certain length in order to qualify as a
pile fabric. We note, however, that in situations where the
fabric has been knitted so tightly that in effect no loops
have been created, the fabric will not qualify as a pile
fabric classifiable under heading 6001, HTSUSA.
In the case of the subject merchandise at the time of the
knitting process there are no loops or floats which protrude in
any way from the surface of the fabric. The "pile-like
appearance" is a result of the brushing, that is, subsequent
processing. Accordingly, although we do not disagree with our
Laboratory's findings that as a technical matter this merchandise
is engineered to be pile, it is the opinion of this office that
given the precedential value of our prior rulings, the fact that
at the time of knitting this merchandise does not exhibit any
raised loops or floats, precludes the subject merchandise from
classification as pile.
Heading 5903 provides for textile fabrics impregnated,
coated, covered or laminated with plastics, other than those of
heading 5902. This provision, accurately describes the submitted
merchandise.
We address one final issue. In a meeting held at this
office, you made reference to Internal Memorandum 951111 to
substantiate your position that the subject merchandise is not
classifiable as pile. As we have already noted, "951111" is not
per se a Headquarters Ruling (HQ), but an Internal Memorandum.
As such, to the extent that a relevant portion(s) of that
Internal Memorandum is referenced because it is cited in an
actual Headquarters Ruling, only that portion(s) has any
precedential value as far as the public is concerned. The entire
document however, cannot and should not be treated as a
Headquarters Ruling.
HOLDING:
The subject merchandise, referenced style numbers Stealth
fabric, AQ955, Quiet Cloth fabric and T43001, are properly
classified in subheading 5903.90.2500, HTSUSA, which provides for
textile fabrics impregnated, coated, covered or laminated with
plastics, other than those of heading 5902: other: of man-made
fibers: other: other. The applicable rate of duty is 8.2 percent
ad valorem and the quota category is 229.
The Mflock fabric is properly classified in subheading
5907.00.1500, HTSUSA, which provides for textile fabrics
otherwise impregnated, coated or covered; painted canvas being
theatrical scenery, studio back-cloths or the like: laminated
fabrics; fabrics specified in note 9 to sectionXI: of man-made
fibers: other. The applicable rate of duty is 13.6 percent ad
valorem and the quota category is 229.
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, we suggest that your client 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, your client 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