CLA-2 RR:CR:TE 961739 RH
Ms. Fiona Chau
Trade Specialist
Hong Kong Economic & Trade Office
1520 18th Street, NW
Washington, D.C. 20036
RE: Heading 5309; Heading 5211; Note 2, Section XI; Statistical Note 2, Section XI
Dear Ms. Chau:
This is in reply to your letter of April 20, 1998, regarding the classification and quota category of fabric which LMJ & Association, Inc., attempted to enter at the Port of Los Angeles, Long Beach, California.
We examined the fabric swatch you sent us and are returning it to you, as requested.
FACTS:
The merchandise under consideration is twill, woven fabric composed by weight of 40 percent linen, 35 percent cotton and 25 percent polyester. Customs determined that the classification of the fabric was under subheading 5309.29.3020 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as woven fabric of flax, which required a category 220 visa. The importer was unable to produce the visa, and Customs denied entry of the merchandise into the United States.
In your opinion, the fabric should have been classified as cotton fabric in subheading 5211.49.0090, HTSUSA, under quota category 218.
ISSUE:
Is the fabric at issue classifiable under heading 5309, HTSUSA, as woven fabric of flax, or under heading 5211, HTSUSA, as woven fabric of cotton?
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LAW AND ANALYSIS:
Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied.
The three materials that make up the fabric in question are classifiable under different provisions. Flax fabrics are classifiable in Chapter 53, HTSUSA. Cotton fabrics are classifiable in Chapter 52, HTSUSA. Polyester fabrics are classifiable in Chapter 54, HTSUSA, if in filament form, or under Chapter 55, HTSUSA, if in staple form. We note that the Hong Kong export license for this fabric describes it as “40% linen 35% cotton 25% polyester woven yarn dyed fabric, twill weave carded and filament yarn.”
Classification of fabrics which contain two or more textile materials is governed by Note 2 to Section XI which states, in relevant part:
(A) 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.
When no one textile material predominates by weight, the goods are to be classified as if consisting wholly of that one textile material which is covered by the heading which occurs last in numerical order among those which equally merit
consideration.
(B) For the purposes of the above rule:
* * * *
(b) The choice of appropriate heading shall be effected by determining first the chapter and then the applicable heading within that chapter, disregarding any materials not classified in that chapter;
(c) When both chapters 54 and 55 are involved with any other chapter, chapters 54 and 55 are to be treated as a single chapter;
(d) Where a chapter or a heading refers to goods of different textile materials, such materials are to be treated as a single textile material.
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You state that the aggregate weight of cotton (35 percent) and man-made fibers (25 percent) exceeds 50 percent of the total weight of the fabric, and that the cotton fibers exceed the weight of the man-made fibers. Therefore, you suggest classification under heading 5211.40.0090, HTSUSA, which provides, in part, for woven fabrics of cotton mixed mainly or solely with man-made fibers.
We disagree that the fabric is classifiable as of cotton. The combining of textile materials under Note 2(A), Section XI, HTSUSA, to be treated as one material, is limited to articles classifiable in chapters 54 and 55. As stated above, cotton fibers are classifiable in chapter 52. Accordingly, they cannot be combined with the polyester fibers and treated as a single textile material.
The fibers that predominate by weight in the subject fabric are flax. Thus, it is classifiable under heading 5309, HTSUSA, as woven fabric of flax. At the eight-digit level, the fabric is classifiable under subheading 5309.29.30, HTSUSA, as “Woven fabrics of flax: Containing less than 85 percent by weight of flax: Other: Other: Containing cotton and man-made fibers.” At the ten-digit statistical level, the combination of cotton fibers and man-made fibers will be considered for classification of the fabric. Statistical Note 2 to Section XI, HTSUSA, reads, in relevant part:
For the purposes of the Tariff Schedule:
(a) The term "subject to cotton restraints" means articles in which:
(i) The cotton component equals or exceeds 50 percent by weight of all the component fibers thereof; or
(ii) The cotton and any wool, fine animal hair or man made fibers in the aggregate equals or exceeds 50 percent by weight of all the component fibers thereof and the cotton component equals or exceeds the weight of each of the wool (including fine animal hair) and man made fiber components.
In the instant case, the combination of the cotton (35 percent) and the polyester (25 percent) exceeds 50 percent by weight of the component fibers, and the cotton fibers exceed by weight that of the man-made fibers. Accordingly, the fabric is “subject to cotton restraints” and is classifiable at the ten-digit level under subheading 5309.29.3020, HTSUSA, which provides, in part, for woven fabrics of flax, containing cotton and man-made fibers, subject to cotton restraints.
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HOLDING:
The twill, woven fabric composed by weight of 40 percent linen, 35 percent cotton and 25 percent polyester, is classifiable under subheading 5309.29.3020, HTSUSA, which provides for “Woven fabrics of flax: Containing less than 85 percent by weight of flax: Other: Other: Containing cotton and man-made fibers: Subject to cotton restraints: Other.” It is dutiable at the general column one rate at 4.7 percent ad valorem, and the textile category is 220.
The designated textile and apparel category may be subdivided into parts. If so, the 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 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 updated weekly and is available for inspection at your 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, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division
Enclosure