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HQ 959801

November 7, 1997

CLA-2 RR:TC:TE 959801 jb


TARIFF NO.: 5903.90.2500

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 November 11, 1996, supplementing a letter dated February 28, 1996, submitted by Barthco International 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. We regret the delay in our response.


The subject merchandise consists of five samples, referenced style numbers Mflock fabric, Stealth fabric, AQ955 fabric, Quiet Cloth fabric, and T43001 fabric, all of which, except for the Mflock fabric, are 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 that all of the fabrics, except for the Mflock fabric, consisted of a warp knit pile construction. Verbal consultations with the Laboratory also reveal that all of the fabrics (except the Mflock) are knit base fabrics which have a "loop-raised pile fabric construction" and that this merchandise is "engineered to be pile". There seems to be no disagreement with respect to the classification of the Mflock fabric, that is, we agree that this fabric is a flocked fabric classifiable in heading 5907, HTSUS. As such, this letter will not specifically address this fabric in the analysis.

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.


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?


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 (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 Headquarters 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 Headquarters 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 Headquarters Ruling.


The subject merchandise, referenced style numbers Stealth fabric, AQ955, Quiet Cloth fabric and T43001, 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 Mflock fabric is properly classified in subheading 5907.00.1500, HTSUSA, which provides for textile fabrics otherwise impregnated, coated or covered; painted canvas being theatrical scenery, studio back-cloths or the like: laminated fabrics; fabrics specified in note 9 to sectionXI: of man-made fibers: other. The applicable rate of duty is 13.6 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.


John Durant, Director
Commercial Rulings Division

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