CLA-2 RR:TC:TE 960548 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 August 28, 1996, 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.
FACTS:
The subject merchandise consists of four samples, referenced
style numbers MT050, MT075, MT5447C and MT73153, 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:
Style MT 050 consists of three swatches of materials (one
greige, one printed and brushed and one printed, brushed
and laminated with plastic on its non brushed surface).
Each sample consists of a locked knit construction, not
pile.
Style MT075 consists of three swatches of materials (one
greige, one dyed and one printed, brushed and laminated
with plastic on its non brushed surface). Each of the
samples have a raised loop construction.
Style MT 5447C consists of four swatches of materials
(one greige, one brushed and discharge printed, one
brushed and printed and one brushed, dyed and laminated
with plastic on its non brushed surface). Each of the
samples have a raised loop construction.
Style MT 73153 consists of three swatches of materials
(one greige, one brushed and
dyed and one brushed, white and laminated with plastic on
its non brushed surface). Each of the samples have a
raised loop construction.
Verbal consultations with the Laboratory also reveal that all of
the fabrics, except for style MT050, are knit base fabrics which
have a "loop-raised pile fabric construction" and that this
merchandise is "engineered to be pile".
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
Headquarter 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 Headquarter 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 Headquarter Ruling.
HOLDING:
The subject merchandise, referenced style numbers MT 050, MT
075, MT 5447C, and MT 73153, 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 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
Tariff Classification Appeals
Division