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HQ 089438


September 17, 1991

CLA-2 CO:R:C:T 089438 CRS

CATEGORY: CLASSIFICATION

TARIFF NO.: 5408.33.9030

District Director
U.S. Customs Service
One Virginia Avenue
Wilmington, NC 28401

RE: Protest and application for further review on sized fabric made from viscose filament rayon yarns and flax yarns; when warp and filing yarns are of different material it is not necessary to extract sizing from the fabric and allocate it according to the relative weights of the individual yarns; HRL 088134; Note 2, Section XI, EN (I)(A)(5).

Dear Sir:

This is in reply to a request for further review of protest no. 1512-90-000103 of December 27, 1990, filed by Sandler, Travis & Rosenberg on behalf of South-Eastern Fabrics Corp.

FACTS:

The protested merchandise consists of four entries of woven fabric made from rayon and flax. Protestant contends the fabric should be classified as a woven fabric of flax in heading 5309, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), based on an independent laboratory report which states that the fabric is comprised of 51.4 percent linen (flax), 48.6 percent rayon.

However, the fabric was classified as a woven fabric of artificial filament yarn of heading 5408, HTSUSA, based on an analysis by Customs' Savannah laboratory, the fabrics contain approximately 16.6 single yarns per centimeter in the warp and 13.2 single yarns in the filling. Microscopic examination shows the warp yarns to be 100 percent rayon and the filling yarns to be 100 percent flax. The samples tested weighed between 235 and 257 g/m, of which viscose rayon comprised from 50.7 percent to 52.5 percent of the total fabric weight.

ISSUE:

Whether the fabric in question is classifiable as a woven fabric of flax or as a woven fabric of artificial yarn.

LAW AND ANALYSIS:

Note 2, Section XI, HTSUSA, provides that goods of Chapters 50 to 55 that are comprised of two or more textile materials are to be classified as if they consisted wholly of that one material that predominates by weight over each other single textile material.

The Explanatory Notes, Harmonized Commodity Description and Coding System, while not legally binding, constitute the official interpretation of the Harmonized System at the international level. General Explanatory Note (EN) (I)(A), Section XI, HTSUSA, provides in relevant part that for the application of Note 2, Section XI:

(5) Sizings or dressings...and also products for impregnating, coating, covering or sheathing, incorporated in textile fibres are not deemed to be non-textile materials; in other words, the weight of the textile fibres is calculated on the basis of their weight in the state which they are presented.

Thus Note 2, Section XI, and EN (I)(A)(5), requires that the weight of any sizing be taken into account when calculating the weight of the fibers at the time of importation.

In this case, since the warp yarns were wholly of rayon and the filling yarns wholly of flax it was not necessary to extract the sizing, and then allocate it to the rayon and flax based on the relative weights of the yarns. See HRL 088134 dated March 26, 1991. Instead, the yarns were segregated and weighed. On this basis it was determined that the fabric was composed of between 50.7 percent and 52.5 percent rayon yarns, by weight. Since filament viscose rayon predominated by weight over flax, the fabric in question was therefore correctly classified in heading 5407 under the provision for woven fabrics of artificial filament yarn.

HOLDING:

The fabric in question is classifiable in subheading 5408.33.9030, HTSUSA, under the provision for woven fabrics of artificial filament yarn...; other woven fabrics; of yarns of different colors; other; other; other; sheeting. The fabric is dutiable at the rate of 17 percent ad valorem and is subject to textile quota category 627.

Since the rate of duty under the classification indicated above is the same as the liquidated rate, you are instructed to deny the protest in full. A copy of this decision should be attached to the Form 19 Notice of Action.

Sincerely,


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