CLA-2 RR:CR:TE 961083 jb
Paul G. Giguere, Esq.
Sandler, Travis & Rosenberg, P.A.
1300 Pennsylvania Ave., N.W.
Washington, D.C.20004
RE: Classification of woven fabrics composed of filament
polyester warp and a filling composed of filament spandex
and polyester staple; buffed
Dear Mr. Giguere:
This is in response to your letter of December 3, 1997, on
behalf of your client, the Korea Textile Trade Association,
requesting a classification determination under the Harmonized
Tariff Schedule of the United States (HTSUS), for certain man-made woven fabrics. Samples were submitted to this office for
examination.
FACTS:
The subject merchandise consists of woven fabric made from
man-made synthetic fibers- polyester filament. Polyester is
extruded into filament yarn and the fabric is woven from the
polyester filament yarn and polyester filament combined with
spandex yarn. Subsequent to weaving, the fabric is further
processed by way of what is referred to as "buffing", "sanding",
"beating", or "napping". This processing causes the filament
yarn in the filling to cut, break, or otherwise separate on the
surface of the fabric. You assert that although the further
processing of this fabric cuts, breaks, or otherwise separates
some of the filament yarns, this does not change the character of
the fabric. As such, the fabric remains woven fabric of
synthetic filament yarn, albeit that some filament is cut,
broken, or otherwise separated. In your opinion the fibers cut,
broken or otherwise separated in the surface treatment of the
fabric do not constitute staple fiber, as concluded by Customs.
Four samples were submitted to this office. When examined
by the Customs laboratory, the following results were obtained:
I. #7 Tongkook 961083 greige:
... has a satin weave construction, weighs 241.9 grams
per square meter, and has the characteristics of an
unbleached fabric. The fabric has a napped portion and
an unnapped portion on one surface. The warp yarn is
composed wholly of polyester filaments. The weft yarn
is composed of polyester fibers wrapped around an
elastomeric core (filament). The sample has the
following compositon by weight:
Unnapped Portion Percent
Polyester textured filaments
51
Polyester filaments (characteristics of non-textured) 43
Elastomeric core
6
Napped Portion Percent
Polyester warp (wholly of filaments)
51
Polyester weft (wholly of staples less than 2
inches long) 43
Elastomeric core
6
II. #8 Tongkook 961083 beige:
... has a satin weave construction, weighs 269.5 grams
per square meter, and has the characteristics of
containing yarns of different colors. The fabric has a
napped portion and an unnapped portion on one surface.
The warp yarn is composed wholly of polyester
filaments. The weft yarn is composed of polyester
fibers wrapped around an elastomeric core (filament).
The sample has the following compositon by weight:
Unnapped Portion Percent
Polyester textured filaments
50
Polyester filaments (characteristics of non-textured) 47
Elastomeric core
3
Napped Portion Percent
Polyester warp (wholly of filaments)
50
Polyester weft (wholly of staples less than 2
inches long) 47
Elastomeric core
3
III. #9 Tongkook 961083 brown:
... has a satin weave construction, weighs 261.9 grams
per square meter, and has the characteristics of
containing yarns of different colors. The fabric has
been napped on one surface. The warp yarn is composed
wholly of polyester filaments. The weft yarn is
composed of polyester fibers wrapped around an
elastomeric core (filament). The sample has the
following compositon by weight:
Polyester warp (wholly of filaments)
49
Polyester weft (wholly of staples less than 2
inches long) 48
Elastomeric core
3
IV. #10 Tongkook 961083 tan:
... has a satin weave construction, weighs 259.2 grams
per square meter, and has the characteristics of
containing yarns of different colors. The warp yarn is
composed wholly of polyester filaments. The weft yarn
is composed of polyester filaments wrapped around an
elastomeric core (filament). The sample has the
following compositon by weight:
Polyester filaments (characteristics of non-textured) 49
Polyester "textured" filaments
48
Elastomeric core
3
Although no dispute exists between Customs and the importer
regarding classification of this merchandise at the heading
level, that is, that the merchandise consists of woven fabric of
"synthetic filament yarn", classifiable in heading 5407, HTSUS,
there remains some question with respect to the appropriate
subheading level for this merchandise. It is the opinion of
Customs that the cutting, breaking, or otherwise separating of
the filaments during the napping process converts the yarn into a
staple fiber yarn. You claim however, that the cutting,
breaking, or otherwise separating of filaments in the napping
process does not convert the yarn into a staple fiber yarn, and
that the merchandise should be classified at a subheading
providing for 85 percent or more by weight of textured polyester
filaments. In support of your claim you make reference to:
1. the Explanatory Notes to the Harmonized Commodity
Description and Coding System (EN) to chapter 55;
2. New York Ruling Letter (NY) B86748, dated July 8, 1997,
wherein Customs classified two fabrics virtually
identical in composition to the subject merchandise, at
a subheading level for other woven fabrics containing
85 percent or more by weight of polyester filaments.
ISSUE:
Whether a continuous fiber yarn (i.e. filament yarn) is
considered "continuous" when subsequent processing (after weaving
and prior to importation into the United States), as in this case
"napping", cuts, breaks, or otherwise separates the fibers into
short fibers (i.e., staple fibers)?
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.
Section XI, Note 2(A) states:
Goods classifiable in chapters 50 to 55 or in heading 5809
or 5902 and of a mixture of two or more textile materials
are to be classified as if consisting wholly of that one
textile material which predominates by weight over each
other single textile material.
* * *
Two of the four samples submitted were presented with
portions which were unnapped for illustrative purposes. In the
unnapped condition, the subject samples are composed of either 94
percent warp and weft (polyester filament) and 6 percent
elastomeric core (#7 Tongkook), or 97 percent warp and weft
(polyester filament) and 3 percent elastomeric core (#8
Tongkook). In its napped condition, the subject merchandise is
composed of: 51 percent polyester warp (wholly of filaments), 43
percent polyester weft (wholly of staples less than 2 inches
long) and 6 percent elastomeric core (#7 Tongkook); 50 percent
polyester warp (wholly of filaments), 47 percent polyester weft
(wholly of staples less than 2 inches long) and 3 percent
elastomeric core (#8 Tongkook); 49 percent polyester warp
(wholly of filaments), 48 percent polyester weft (wholly of
staples less than 2 inches long) and 3 percent elastomeric core
(#9 Tongkook); 49 percent polyester filaments (characteristics
of non-textured), 48 percent polyester textured filaments and 3
percent elastomeric core (#10 Tongkook). In either case, in all
of the samples the textile material which predominates by weight
is the polyester filament yarn. As such, there is no
disagreement that the proper classification for the subject
merchandise is in heading 5407, HTSUS, which provides for woven
fabrics of synthetic filament yarn.
However, a determination must be made with respect to the
appropriate subheading for this merchandise. It is a basis tenet
of Customs law that classification of merchandise is based on its
condition as imported. As such, a discussion of the proper
subheading for this merchandise requires an examination of the
subject merchandise in its napped condition. Simply stated, the
issue is whether the changes to the filling yarns, as a result of
the napping process, results in fibers
characterized as staple fibers, irrespective of the fact that at
the time of the weaving process of this fabric, the yarns used in
the filling were filament yarns. The Explanatory Notes to the
Harmonized Commodity Description and Coding System (EN) to
chapter 55, HTSUS, state:
Man-made staple fibres are usually manufactured by extrusion
through spinnerets (jets) having a large number of holes
(sometimes several thousand); the filaments from a large
number of spinnerets (jets) are then collected together in
the form of a tow. This tow may be stretched and then cut
into short lengths, either immediately or after having
undergone various processes (washing, bleaching, dyeing,
etc.) while in the tow form. The length into which the
fibres are cut is usually between 25 mm and 180 mm and
varies according to the particular man-made fibre concerned,
the type of yarn to be manufactured and the nature of any
other textile fibres with which they are to be mixed.
It is your opinion that as the EN to chapter 55 describe
only one method of manufacture for staple fibers (i.e., extruded
filaments which have been assembled into a tow and cut to short
lengths), and that method is not descriptive of the filling yarns
in the subject merchandise which have been generated from
filament fiber yarns, the filling yarns in the subject
merchandise cannot be classified as staple fiber yarns. We note
however, that as the EN to chapter 55 state "Man-made staple
fibres are usually manufactured by extrusion through
spinnerets...", this statement in no way mandates the preclusion
of all other manufacturing processes. This statement is simply
illustrative of one of the manufacturing processes involved in
producing staple fibers and should not be given a restrictive
reading. We direct your attention to the following lexicographic
sources which provide useful information with respect to a
definition of "staple":
Natural fibers or cut lengths from filaments. The staple
length of natural fibers varies from less than 1 inch as
with some cotton fibers to several feet for some hard
fibers. Man-made staple fibers are cut to a definite
length, from 8 inches down to about 1-1/2 inches
(occasionally down to 1 inch), so that they can be processed
on cotton, woolen, or worsted yarn spinning systems. The
term staple (fiber) is used in the textile industry to
distinguish natural or cut length man-made fibers from
filament. Man-Made Fiber and Textile Dictionary, 1974, at
110;
Term used to indicate lengths of fiber that require spinning
and twisting in the manufacture of yarn; man-made fibers
that have been cut to a definite length, usually about one
and one-half inches, but occasionally down to one inch.
Generally done to produce a fiber that can be processed on
the cotton and worsted systems.... Fairchild's Dictionary of
Textiles, 1970, at 556-557.
As we have discussed, the terms of the EN are to be
understood as a simple illustration of but one manufacturing
process which yields staple fibers. Although the discontinuous
polyester fibers in the subject fabric are not made as described
in the EN to chapter 55, the discontinuous fiber does meet the
physical description of the final product. Specifically, the
final product is discontinuous and is of a length consistent with
the specifications in the EN, that is, 25 mm to
180 mm. Furthermore, we note that in the references stated
above, the term "staple" is simply an indication of the cutting
to specified short lengths to which the filaments are subjected.
No specific manner by which the cutting procedure is undertaken
is implied or should be inferred.
With respect to your reference to NY B86748, this office is
currently in the process of reviewing the determination therein.
It is the opinion of this office that the polyester fibers
in the filling yarns have been processed, i.e., cut by buffing or
napping, so that the fibers are short discontinuous fibers having
the characteristics of staple fibers. Based on the Customs
laboratory report, in the napped condition, all of the above
fabrics, except #10 Tongkook, which is not napped, contain less
than 85 percent by weight of synthetic filaments. Since in the
condition as imported the polyester fibers in the filling yarns
are in short lengths, and meet the physical description of
"staple fibers", the fabrics designated as #7 Tongkook, #8
Tongkook and #9 Tongkook, should be classified accordingly. The
sample designated as #10 Tongkook however, is classified as a
polyester fabric containing 85 percent or more by weight of
polyester filaments.
HOLDING:
The fabrics designated as "#8 Tongkook" and "#9 Tongkook"
are properly classified in subheading 5407.93.2050, HTSUSA, which
provides for woven fabrics of synthetic filament yarn, including
woven fabrics obtained from materials of heading 5404: other
woven fabrics: of yarns of different colors: other: other: other:
satin weave or twill weave. The applicable general column one
rate of duty is 15 percent ad valorem and the quota category is
628.
The fabric designated as "#7 Tongkook" is properly
classified in subheading 5407.91.2050, HTSUSA, which provides for
woven fabrics of synthetic filament yarn, including woven fabrics
obtained from materials of heading 5404: other woven fabrics:
unbleached or bleached: other: other: satin weave or twill weave.
The applicable general column one rate of duty is 16.2 percent ad
valorem and the quota category is 628.
The fabric designated as "#10 Tongkook" is properly
classified in subheading 5407.69.4060, HTSUSA, which provides for
woven fabrics of synthetic filament yarn, including woven fabrics
obtained from materials of heading 5404: other woven fabrics,
containing 85 percent or more by weight of polyester filaments:
other: of yarns of different colors: other: weighing more than
170 g/mý. The applicable general column one rate of duty is
13.6 percent ad valorem and the quota category is 620.
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