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HQ 964233





November 23, 2001

CLA-2: RR:CR:TE 964233 ASM

CATEGORY: CLASSIFICATION

TARIFF NO.: 6002.30.2080

Port Director
U.S. Customs Service, Port of New York c/o Chief, Residual Liquidation and Protest Branch 6 World Trade Center
Room 761
New York, New York 10048-0945

RE: Decision on Application for Further Review of Protest No. 1001-98-101813, filed June 10, 1998, Concerning the classification of Mixed Tricot Fabrics

Dear Port Director:

This is a decision on the Application for Further Review of Protest No. 1001-98-101813, which was timely filed by Viking Sea/Air Freight Inc., a customhouse broker, on behalf of Toray Marketing & Sales, against your decision in the classification and liquidation of mixed tricot fabrics. A sample was requested from your attorney of record at the address you provided. However, the letter was returned unopened to this office. Accordingly, this decision is based solely upon the information contained in the file before us.

FACTS:

The subject merchandise is described as mixed tricot fabrics comprised of 68 percent nylon; 16 percent polyester; 16 percent spandex. The fabrics have a width of 74 inches (188 cm) x 48.3/51.9 yards.

In filing this protest, the Importer contends that the merchandise is correctly classified under subheading 6002.93.0080, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for “Other knitted or crocheted fabrics: Other: Of man-made fibers, Of double knit or interlock construction: Other.” This provision had a duty rate of 13.2 percent ad valorem (under the HTSUSA for 1998) and a textile quota category of 222.

Upon importation, Customs classified the fabric under subheading 6002.30.2080, HTSUSA, which provides for “Other knitted or crocheted fabrics: Of a width exceeding 30 cm, containing by weight 5 percent or more of elastomeric yarn or rubber thread: Containing elastomeric yarn, Other.” On April 10, 1998, the merchandise was liquidated at 13.5 percent ad valorem with a textile quota category of 222.

ISSUE:

What is the proper classification for the merchandise?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States Annotated (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 heading and legal notes do not otherwise require, the remaining GRI may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. The EN, although not dispositive, are used to determine the proper interpretation of the HTSUSA by providing a commentary on the scope of each heading of the HTSUSA. See, T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

Based on the invoice description, the subject article is identified as a mixed tricot fabric, with a width of 74 inches (188 cm), 68 percent nylon, 16 percent polyester, and 16 percent spandex. In the descriptive literature that accompanied the Protest for Further Review, the item is described as a multi-layer fabric by which sweat is quickly absorbed by an inner layer of fabric and transported rapidly, by the capillary action of the inner fiber spaces, to the outer surface. The fabric accomplishes this function by providing a graduated decrease in the size of the spaces between fibers promoting quick dispersal of sweat from the inner layer to the outer layer and then evaporated into the air.

Based on these facts, it is clear that the width exceeds 30 cm (11.8 inches) and the weight of the elastomeric yarn (spandex) exceeds 5 percent. Thus, the subject merchandise was properly classified under subheading 6002.30 HTSUSA, because the provision specifically provides for knitted fabric “Of a width exceeding 30 cm, containing by weight 5 percent or more of elastomeric yarn”. The sales invoice confirms the description of the subject merchandise as “68 percent nylon, 16 percent polyester, 16 percent spandex, mixed tricot fabrics.”

HOLDING:

The subject merchandise was correctly classified in subeading 6002.30.2080, HTSUSA, which provides for, ““Other knitted or crocheted fabrics: Of a width exceeding 30 cm, containing by weight 5 percent or more of elastomeric yarn or rubber thread: Containing elastomeric yarn, Other.” Under the 1998 HTSUSA, the rate of duty for this provision was 13.5 percent ad valorem with a textile quota category of 222.

The protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliqudation of the entry or entries in accordance with the decision must be accomplished prior to mailing of the decision.

No later than 60 days from the date of this letter, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and by other methods of public distribution.

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 the importer, by copy of this letter, be advised to 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 a 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 applicable to textile merchandise, the importer should contact a local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director

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