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HQ 952804


January 28, 1993

CLA-2 CO:R:C:T 952804 PR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6002.93.0080

Mr. Sooseong Park
Lee Company
137 Eucalyptus Drive
El Segundo. CA. 90245

RE: Classification of knit fabrics with laid-in metalized strips and Mylar sequins--Held not pile fabrics and not covered or coated with plastics

Dear Mr. Sooseong:

This is in reply to your letter of September 28, 1992, on behalf of One Way Textile, Inc., concerning the classification of two sample fabrics. Our ruling on the matter follows.

FACTS:

The sample fabrics appear identical except for color. Our National Import Specialist describes them as follows:

. . . two samples of nylon jersey knitted fabrics. Both have laid-in metalized strips which are approximately 0.5 mm in width. If these laid-in yarns are removed, the base fabrics maintain their structural integrity. The laid-in yarns form loops visible on the surface of the materials, and they protrude slightly from the fabric surface. Both of these fabrics have metalized Mylar circular dots 6 mm in diameter. They appear to have been attached by means of an adhesive. They are evenly spaced, separated from each other by approximately 2 mm in both the warp and the weft directions, and present a uniform geometric pattern on the fabric surface.

The "loops" described by the National Import Specialist are, in actuality, loose floats.

The merchandise at issue is described in the inquiry as follows:

1. Description of the article: American knit with transcolor plain dyed -2-

2. Composition of material:
Ground: Metallic knit fabric P/D 44/5"
Nylon F. Yarn 70D(S/D) .... 70gr/YD
Polyester film S-300 metallized
All coated 12U/80CUT ..... 30 gr/YD
Total weight: 100gr/YD
Acc. : 6mm Transfer sequins...45gr.yd
G. Total weight: 145gr/yd

ISSUE:

The primary issued presented is whether the sample fabrics are classifiable as knit pile fabrics under heading 6001, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), or as other knit fabrics in under heading 6002, HTSUS. If it is determined that the fabrics are not classifiable as pile fabrics, then an ancillary issue arises--whether the fabrics are classifiable as fabrics coated or covered with plastics, under heading 5903, HTSUS.

LAW AND ANALYSIS:

HR 068507, dated November 18, 1981, which was issued under the Tariff Schedules of the United States (TSUS), the predecessor to the HTSUS, concerned the question of whether a napped knit fabric with laid-in yarns was classifiable as a pile fabric. That ruling concerned a three bar warp knit fabric with two nylon yarns and a triacetate yarn. Although not specifically stated, it is clear that the triacetate yarn was not necessary to the stability of the fabric since those yarns were completely broken by a series of brushing processes. There we stated:

The importer cites Tilton Textile Corp. v. United States, 77 Cust. Ct. 27, C.D. 4670 (1976), aff'd 65 CCPA 18, C.A.D. 119 (1977), and Merry Mary Fabrics, Inc. v. United States, 1 C.I.T. [13], Slip Op. 80-3 (1980), in support of the proposition that the classification of a fabric under the provisions for pile fabrics in the tariff schedules depends on the construction of that fabric.

* * * Tilton was concerned with the classification of uncut velveteen material. There, the court held that in its uncut condition, the merchandise did not constitute a pile fabric but, once cut, the fabric would become a velveteen [pile] fabric.

In Tilton, both the lower and appellate courts specifically held that for a fabric to be classifiable as pile fabric (under the TSUS), it must have a raised pile. In addition, the appellate court found that flat floating yarns which, when cut, would create a pile -3-
was not sufficient to cause that fabric, in its uncut condition, to be considered an "unfinished" pile fabric unless it could be shown that the fabric, in its uncut condition, had no commercial value.

Under the HTSUS pile fabrics are classifiable primarily under four headings--(1) 6001, which provides for knit pile fabrics; (2) 5806, which provides for woven narrow fabrics; (3) 5802, which provides for woven terry fabrics; and (4) 5801 which provides for all woven pile fabrics not provided for in headings 5802 and 5806.

The classification of articles under the TSUS is not determinative of the proper classification of those same articles under the HTSUS. However, we believe that there must exist a valid reason to deviate from the distinction between napped and pile fabrics drawn by Tilton, supra, Merry Mary, supra, and HR 084317, supra. In this area, such a reason exists only for a single specified class of fabrics. Note 2, Chapter 58, HTSUS, wherein headings 5801, 5802, and 5806 are located, provides:

Heading 5801 also includes woven weft pile fabrics which have not yet had the floats cut, at which stage they have no pile standing up.

Note 2 is very specific. It applies to a single class of fabrics, which include, e.g. uncut corduroys and uncut velveteens, but does not include such fabrics as uncut velvets. The fact that the HTSUSA provides a limited exception is a clear statement by the drafters that all other uncut pile-to-be fabrics which do not have protruding yarns were not intended to be classifiable under the provisions for pile fabrics.

The Explanatory Notes to the Harmonized Commodity Description and Coding System, the official interpretation of the HTSUS at the international (six digit) level, are in accord with this conclusion. The Explanatory Notes for Heading 6001, HTSUS, where knit pile fabrics are classifiable, provide the following descriptions of the types of fabrics classifiable in Heading 6001:

(1) a circular knitting machine produces a knitted fabric in which, by means of an additional yarn, protruding loops are formed . . .

(2) a special warp knitting machine knits tow fabrics face to face with a common pile yarn . . .

(4) textile yarn to form loops ("imitation terry fabrics") . . .

(at page 827; italics added) -4-

In addition, the Explanatory Notes for heading 5801, under which woven pile fabrics are classifiable, specifically state that "Woven pile fabrics are composed of at least three series of threads: tight warp and weft forming the ground fabric and a warp or weft forming a pile." (at page 792; italics added)

The Explanatory Notes for Headings 5801 and 6001 reinforce the necessity of Chapter 58 Note 2. Without that note, uncut woven weft pile-to-be fabrics (e.g. uncut corduroys) would not be classifiable as pile fabrics.

Accordingly, except for fabrics subject to the provisions of Chapter 58 Note 2, if, during the weaving or knitting of a fabric, yarns are caused to project sufficiently from the surface(s) of that fabric creating a "pile" appearance, then that fabric is classifiable as a pile fabric under the HTSUS. However, if a fabric is woven or knit without projecting yarns which create a "pile" surface or surfaces, even if a "pile" appearance is later produced by a brushing, teaseling, or similar process, then that fabric is not classifiable as a pile fabric under the HTSUS.

A significant problem is left unanswered by the above--how high must yarns project from the surface of a fabric for them to constitute a "pile"? While we realize that an objective standard is desirable and easily enforceable, we have been unable ascertain any objective criterion which may be applied in determining if a pile exists. In our view, a fabric may classified as a "pile fabric" only if it is commonly or commercially accepted as such. Applying this standard to the instant samples, based on our own observation and on the advice of our National Import Specialist, the instant fabrics would not be commercially or commonly accepted as "pile". The loose floats formed by the laid-in yarns do not project sufficiently to change the identity of those fabrics.

In regard to whether an uncut pile fabric may be classified as an unfinished pile fabric, General Rule of Interpretation (GRI) 2(a), HTSUS, provides:

Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article.

Following the court in Tilton, supra, a fabric without a raised pile surface, which has a real commercial value in that condition, does not have the essential character of a pile fabric. Therefore, it would not be classifiable as an unfinished pile fabric. Obviously, the sample fabrics with plastic sequins have no commercial value as pile fabrics. Accordingly, they are not considered to be "unfinished" pile fabrics. -5-

In regard to classification of the subject fabrics as plastics coated or covered fabrics under heading 5903, HTSUS, Note 2(a)(4) to Chapter 59, HTSUS, provides that fabrics "partially coated or partially covered with plastics and bearing designs resulting from these treatments" are not classifiable under heading 5903. In our view, the large, readily visible sequins form a geometric design, precluding the classification of those fabrics under heading 5903.

HOLDING:

The subject fabrics, when imported in material lengths, are classifiable under the provision for other knitted fabrics of man- made fibers, in subheading 6002.93.0080, HTSUSA, textile restraint category 222, with duty, as a product of South Korea, at the 1993 rate of 14 percent ad valorem.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories applicable to textile merchandise, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

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 renegotiations and changes, to obtain the most current information available, we suggest that 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 available for inspection at your local Customs office.

Sincerely,

John Durant, Director

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