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HQ 953997

January 24, 1994

CLA-2 CO:R:C:T 953997 jb


TARIFF NO.: 5112.19.9060

District Director
U.S. Customs Service
9901 Pacific Highway
Blaine, WA. 98230

RE: Decision on Application for Further Review of Protest No.3004-93100018; fabric in question is not upholstery fabric; eight factors examined; fabric did not pass critical abrasion resistance test; proper classification in 5112.19.9060, HTSUSA

Dear Sir,

This is a decision on application for further review of a protest timely filed on behalf of Canadian Airlines International, on February 11, 1993, against your decision regarding the classification of worsted wool fabric. All entries were liquidated on January 29, 1993. A sample was provided to this office for examination.


The merchandise at issue consists of a navy, blue and red 100 percent worsted wool woven fabric. It weighs 425.37 g/sq. meter and according to the tests performed by the U.S. Customs Laboratory in Savannah, it does not meet the minimum surface abrasion requirements for light-duty woven wool upholstery fabric as specified by the American Society of Testing Materials (ASTM) 3597-89.

It is your position that since the fabric does not meet the ASTM standard, the article does not belong to the class or kind of fabrics principally used as upholstery fabric. Accordingly, the fabric was liquidated in subheading 5112.20.3000, HTSUSA, which provides for other woven fabrics of combed wool or of combed fine animal hair, mixed mainly or solely with man-made filaments. Subsequent to that liquidation, Customs laboratory analysis indicated that the fabric should be classified in 5112.19.9060, HTSUSA, which provides for other woven fabrics of combed wool or of combed fie animal hair, containing 85 percent or more by weight of wool or fine animal hair, weighing more than 340 g/sq. meter. The importer contends that the woven woolen fabric is classifiable as an upholstery fabric of worsted wool mixed mainly or solely with man-made filament in subheading 5112.20.2000, HTSUSA.


Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI), taken in order. 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 will be applied, in the order of their appearance.

Additional U.S. Rule of Interpretation 1(a) states:
a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use;

Although the provision for upholstery fabric in subheading 5112.19.2000, HTSUSA, does not explicitly mention use, it is our belief that this type of fabric is a use provision. In E.C. Lineiro v. United States, 37 CCPA 10, CAD 411, (1949), the court stated that "a designation by use may be established, although the word 'use' or 'used' does not appear in the language of the statute." As such, it is the use of the class or kind of merchandise to which the imported article belongs which must be determined, not the use of the instant merchandise.

Although the introduction of the HTSUSA changed the concept of use from chief use to principal use (chief use requiring that the use exceed all other uses combined, and principal use requiring that the use exceed each other use), it is still informative to see how courts interpreted the former statute since the wording regarding class or kind is nearly identical. In United States v. Colibri Lighters (USA), Inc, 47 CCPA 106, CAD 739, (1960), in discussing the concept of chief use the Appeals Court stated that in addition to the characteristics of the merchandise itself, classification should be based on the chief use of the articles of that class generally and not on the basis to which the individual articles should be put. In Pistorino & Co., Inc. v. United States, 67 CCPA 1, CAD 1234 (1979), the court therein also observed that what has to be determined is the chief use of the class or kind of merchandise.

Further support comes from United States v. the Carborundum Company, 63 CCPA 98, CAD 1172 (1976), in which, in determining whether merchandise is encompassed by a particular class or kind of merchandise, the court considered the general physical characteristics of the merchandise, the channel of trade, and the economic practicality of the "use" of the imported merchandise.

Though there is no one set of physical characteristics to which experts in the upholstery trade adhere to in distinguishing upholstery fabrics from other types of fabric, there are several broad categories of characteristics which when taken in combination define the class of upholstery fabrics. In HQ 075883, dated January 7, 1985, a response to an internal advice request concerning the tariff classification of woven wool fabrics claimed to be upholstery fabrics, eight physical characteristics were considered in an attempt to distinguish upholstery fabrics as a class from other general purpose wool fabrics. These characteristics included weight, abrasion resistance, width, color and design, patterns location, fiber content, yarn twist, and surface characteristics. Similarly, in HQ 084311, dated August 27, 1990, virtually the same criteria was adopted to establish guidelines in a determination of whether wool fabric was upholstery fabric.

The first factor is weight. In general, as a result of the demand for increased utility and longevity of the fabric, upholstery fabrics are often designed to last ten years or more. Consultation with our National Import Specialist has indicated that most woolen upholstery fabrics are over 350 g/sq. meter (10.3 ounces per square yard). The subject fabric weighs 425.37 g/sq. meter. Though this weight is consistent with fabrics used for upholstery, it is not definitive proof since fabric used for overcoats, winter weight suits and other cold climate wear are often this heavy or heavier.

The second criteria is abrasion resistance. This is one of the most important characteristics in evaluating the suitability of a fabric for use as upholstery since these products are constantly subjected to the wear of fabric against fabric. ASTM D 3597-89 has been adopted by Customs as the proper test method which sets forth the abrasion standards for woven upholstery fabrics. To test for abrasion resistance, it designates the use of a wire screen as the abradant, and rubbing the wire screen on at least two samples in the warp direction and at least two in the filling direction. ASTM D 3597-89 further states:

At the end of 3000 cycles (double rubs) examine the specimens for loose threads and wear...If no noticeable change is apparent, continue the test for another 6000 cycles (a total of 9000 cycles). Examine the specimen again. If no noticeable change is apparent, continue the test for another 6,000 cycles (a total of 15,000 cycles).

Classify fabrics that show no noticeable wear after 3000 cycles but show appreciable wear at 9000 cycles as light-duty. Classify fabrics that show no appreciable wear at 9000 cycles but appreciable wear at 15000 cycles as medium duty. Classify fabrics that show no noticeable wear at 15000 cycles as heavy-duty.

Though the protestant did provide data on abrasion resistance, the testing submitted is not in keeping with the testing specifically adopted by Customs for upholstery fabric. The importer submitted the results of ASTM D 4966-89, also referred to as the Martindale Abrasion Tester Method. In The 1993 Annual Book of ASTM Standards, Vol. 07.02, Textiles, 699 (1993), under the caption reading "Significance and Use", the Martindale Abrasion Tester Method states:

This test method is not considered satisfactory for acceptance testing of commercial shipments of fabric. The between-laboratory precision of the test method is poor and, because of the nature of abrasion testing itself, technicians frequently fail to obtain results in agreement on the same type of testing instrument, both within and between laboratories.

Consultations with our Customs laboratory technicians have confirmed the above opinion. The Martindale test, a simple abrasion resistance test for textile fabrics, is neither a stringent nor accurate method for testing upholstery fabrics. It is the unreliability of this test that led to Customs' use of the more specific, ASTM D 3597-89 for the testing of upholstery fabrics. When the Customs laboratory in Savannah, Georgia, tested the upholstery fabric according to the indications of ASTM 3597-89 (a test specifically designed for upholstery fabrics), results indicated that the fabric failed to meet the minimum standard for light domestic use. The Savannah laboratory concluded that even after only the minimum 3000 double rubs, the fabric did not meet the standards for "light-duty".

The third criteria is width of the fabric. A width of 54 inches is generally associated with the upholstery trade while a width of 59 to 60 inches is usually associated with fabric used in the apparel trade. Though this criteria is also not definitive, the fact that the subject article is imported in 50 inch widths, is further evidence that the fabric may not belong to the class or kind of fabric chiefly used as upholstery fabric.

The fourth and fifth criteria refer to the physical characteristics of the fabric, i.e., color, design, and pattern location. Upholstery fabrics display a wide range of colors and designs, but in general are characterized by more complex weave patterns, larger yarns and textured surfaces and unusual color combinations. There is nothing about the subject sample that specifically indicates use as upholstery fabric. The weave pattern is simple, the surface is not textured and the color combinations, consisting of navy blue, blue and red, are very basic.

The sixth factor is fiber content. Though not determinative, the Wool Bureau, a trade organization for the wool industry, in establishing its standards for wool upholstery fabrics which have been blended with other fibers requires a minimum of 70 percent wool. The rationale given is that wool exhibits a unique natural resistance to flammability. The fact that this fabric is 100 percent wool does not shed significant light on whether this fabric belongs to the class or kind of fabric used as upholstery fabric.

The seventh factor deals with yarn twist. Upholstery fabrics are often constructed with yarns which have higher twists than apparel fabric. Although the Savannah laboratory did not test for this characteristic, the fact that the fabric failed the abrasion test might imply that the fabric has yarns of low twist. In addition, the subject sample we examined appears very drapeable, similar to what one would find in an apparel fabric.

The last physical factor is surface characteristics. Upholstery fabrics are often chemically treated to prevent pilling. The information received by us shows no evidence that this fabric has been treated to achieve this end.

In addition to the characteristics mentioned above, there are several other factors we feel are important indicators of upholstery fabrics. Special finishes for retarding flammability are in general associated with upholstery fabrics. There are, in general, only government regulations on the flammability of two classes of textiles. These two classes are home furnishing fabrics (upholstery) and children's nightwear. There is no evidence that the fabric in this case has been so treated, though the protestant claims that this fabric has been fire blocked. However, a fabric of 100 percent wool may still pass flammability standards based solely on its fiber content.

Another physical characteristic typical of upholstery fabric is a plastic coating which both stabilizes the yarns and increases the stiffness of the fabric so that it is more malleable. In addition, wool upholstery fabrics, unlike wool and wool blend apparel fabrics are often treated with chemicals to
moth proof them. Finally, upholstery fabrics are often treated to harden the surface. Again, no evidence was submitted to reflect such treatment of the fabric.

HQ 075883 also examined other factors in determining whether a fabric is chiefly used as upholstery fabric. One such criteria is the economic practicality of using the import for the purpose desired. Upholstery fabrics are more expensive than general purpose fabrics for a variety of reasons. Some of these reasons include the fact that the fabrics, in general, are heavier, woven with more complex designs and subjected to a variety of finishes to improve their physical qualities. In addition, upholstery fabrics, because of their unique designs and color combinations, are usually manufactured in much smaller quantities than apparel fabrics. As such, the manufacturers are not able to reap the benefits of economy of scale in the production of these fabrics. The average margin on wool upholstery fabrics is higher than on apparel or general purpose fabrics because of the limited sales potential of any given design. The fabric at issue costs $32.50 per yard. This price is consistent with the prices for most wool upholstery fabrics, however, it is not inconsistent with the prices of the more expensive wool apparel fabrics. Thus, the cost of this fabric does not present an economic preclusion to its use as either fabric for upholstery or apparel purposes.

Though the importer claims that the fabric is manufactured, bought and sold exclusively for the upholstery trade, no evidence was provided to help ascertain the channels of trade through which this merchandise moves. While we have no doubt that the fabric will be used to upholster airline seats as claimed, it remains that the fabric must be shown to be a member of the class or kind of fabric that is principally used as upholstery fabric and not merely that this particular fabric will be used in that capacity.

A determination as to whether this fabric belongs to the class or kind of fabric used as upholstery fabric must be based on a combination of the various factors that define the class. Though no single criteria is definitive, there are several factors which lead us to the determination that this fabric is not in the class or kind of fabric used as an upholstery fabric. These factors are as follows:

1. many of the physical characteristics of the fabric are not indicative of upholstery fabric (e.g., width of the fabric, color and design, pattern location)

2. the fabric failed to pass even the minimum standard for abrasion resistance.

3. no marketing information was submitted


The submitted fabric is correctly classified in subheading 5112.19.9060, HTSUSA, which provides for woven fabrics of combed wool or of combed fine animal hair, containing 85 percent or more by weight of wool or fine animal hair, other, other, weighing more than 340 g/sq. meter.

The protest should be denied in full. A copy of this ruling should be appended to the Form 19 Notice of Action and furnished to the protestant.


John Durant, Director

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