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HQ 085549

November 21, 1989

CLA-2 CO:R:C:G 085549 HP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6307.90.9050

Ms. Ann M. Williams
A.N. Derringer, Inc.
30 West Service Road
Champlain, NY 12919-9703

RE: Curtain Fabric

Dear Ms. Williams:

This is in reply to your letter of August 15, 1989, concerning the tariff classification of curtain fabric, produced in France, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Please reference your client Commonwealth Curtain Co., Ltd.

FACTS:

The merchandise at issue consists of 100% woven semi-trans- parent polyester fabric, imported in 30 to 60 yard rolls, 88.5" and 98.5" wide. The 88.5" fabric will make 84" long panels or pinch pleated drapes; the 98.5" fabric into 95" panels or drapes.

One side is embroidered with a Cornelli hem (also known as a replique hem), made by folding one edge of the fabric upon itself and stitching it in a decorative pattern. No lines of demarcation exist on the fabric.

Once in the United States, the fabric is cut according to the width of the panel or drape. The sides are hemmed on a blind stitch machine. The panel rod pocket head (on top) is made on a Metropolitan machine. The drape top is made on a tacker machine.

The panels or drapes are then steam pressed, folded, and packaged.

You have stated that the fabric will be used exclusively for the manufacturing of curtain panels and pinch pleated draperies, and cannot be used for any other purpose.

ISSUE:

Whether the instant merchandise is considered made up under the HTSUSA?

LAW AND ANALYSIS:

Made Up Articles

Section XI, HTSUSA, provides for textiles and textile articles. The General Rules of Interpretation (GRI's) to the HTSUSA govern the classification of goods in the tariff schedule.

GRI 1 states, in pertinent part:

... classification shall be determined according to the terms of the headings and any relative section or chapter notes ....

Goods which cannot be classified in accordance with GRI 1 are to be classified in accordance with subsequent GRI's, taken in order.

Note 7 to Section XI provides, in pertinent part:

For the purposes of [Section XI], the expression "made up" means:

(c) Hemmed or rolled edges, or with a knotted fringe at any of the edges, but excluding fabrics the cut edges of which have been prevented from unravel- ling by whipping or by other simple means * * *.

To be considered "made up," the hem on the instant fabric must be necessary for the intended use of the merchandise. HRL 083013 of March 20, 1989; HRL 084348 of August 3, 1989. See HRL 083862 of June 12, 1989 (hem on two sides of umbrella cover fabric merely prevented material from unravelling and did not dedicate material to specific use). It is our opinion that the instant merchandise meets this qualification. The Cornelli hem, in addition to preventing the material from unravelling, is highly decorative and creates the hem of the curtain. The fabric is therefore considered made up under Section XI, HTSUSA.

Unfinished Curtains

Heading 6307, HTSUSA, provides for, inter alia, articles in the length, made up within the meaning of Note 7 to Section XI, supra, provided they are not included in other headings of Section XI. Therefore, if the instant merchandise is not more specifically provided for in another heading, classification as an other made up article would be appropriate.

Heading 6303, HTSUSA, provides for, inter alia, curtains and drapes. The Explanatory Notes to the HTSUSA constitute the
official interpretation of the tariff at the international level.

The Explanatory Note to this heading includes therein:

(1) Curtains (including drapes), which are used, for example, inside windows or to close recesses, theatre stages, etc.
The expression "curtains" covers light- weight and transparent or semi-transpar- ent articles and articles made of thick fabrics.

The heading also covers material in the length so processed after weaving that it is clearly suitable for conversion, by a minor operation, into finished articles of this heading (e.g., fabric in the length to one edge of which has been added a frilled border and which, by simply cutting to required lengths and hemming, is converted into cur- tains). [Emphasis added.]

In United States v. Buss & Co., 5 Ct. Cust. Appls. 110, T.D. 34138 (1914), Judge Martin recognized that

... most small articles are not produced as individual or separate products of the loom, but for economy of manufacture are first woven "in the piece." The rule of decision is therefore established that where such articles are imported in the piece and noth- ing remains to be done except to cut them apart they shall be treated for dutiable purposes as if already cut apart and assessed according to their individual character or identity. It follows, however, only in case the character or identity of the individual articles is fixed with certainty and in case the woven piece in its entirety is not commercially capable of any other use.

Under the Buss rule, therefore, we must decide (1) whether the addition of the hem rendered the fabric commercially unsuitable for use as anything other than curtains or draperies, and (2) whether the addition of the hem enabled the actual individual drapery to be fixed with certainty. Coraggio Design, Inc. v. United States, No. 84-5-00658, Slip Op. 88-22, 22 Cust. B. & Dec. 12/13 at 57 (Ct. Int'l Trade 1988).

You have implied, and we agree, that the addition of the Cornelli hem dedicates the material for use solely as a curtain or drapery, commercially unsuitable for any other use. We do not believe, however, that the addition of the hem enabled actual individual draperies to be fixed with certainty.

It is a well settled maxim in Customs law that
no matter how close the importation is to the finished article or how dedicated it is to a single use, it remains a material until the identity of actual articles can be seen emer- ging with certainty from the undifferentiated material.

Id., 22 Cust. B. & Dec. at 60 (quoting Bendix Moldings, Inc. v. United States, 73 Cust. Ct. 204, 206, C.D. 4576, 388 F. Supp. 1193, 1194-95 (1974)) (citations omitted). "The exact point in the processing at which the material becomes a partly finished article must be determined on the basis of the circumstances of each case." Id. (citations omitted).

In the instant case, a specific drapery cannot be seen emerging from the fabric. Rather, there remain significant processing steps after importation: the fabric must be cut according to specifications, the sides hemmed, the panel rod pocket head formed, the drape top made, the drapes steam pressed, folded, and finally packaged. The fabric, therefore, is not discernable as an individual article, and is not significantly advanced in the manufacturing process to be more than mere material.

HOLDING:

As a result of the foregoing, the instant merchandise is classified under subheading 6307.90.9050, HTSUSA, as other made up articles, including dress patterns, other, other, other. The applicable rate of duty is 7 percent ad valorem. Any rulings in conflict with this decision are hereby modified accordingly.

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 agree- ments 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 issuance of the U.S. Customs Service, which is updated weekly and is available 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 importing the merchandise to determine the current applicability of any import restraints or requirements.

Sincerely,

John Durant, Director
Commercial Rulings Division

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