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HQ 951374


October 30, 1992

CLA-2 CO:R:C:T 951374 jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 6001.22.0000

Mr. Greg Roskies
Huntingdon Mills Ltd.
C.P. 520 P.O. Box
Huntingdon- Quebec JOS 1H0
Canada

RE: Request for reconsideration of Headquarters Ruling (HQ) 089844; fabric properly classified as pile fabric; subheading 6001.22.0000, HTSUSA.

Dear Mr. Roskies:

This is in response to your letter, dated March 13, 1992, requesting reconsideration of HQ 089844, dated November 22, 1991, regarding classification of a knitted, brushed fabric. A sample was submitted to this office for examination (additional samples of different fabrics were also submitted for purposes of comparison, but are not important to the determination of this issue). Upon further review that classification is deemed to be correct and therefore affirmed.

FACTS:

HQ 089844 was issued in response to your application for further review of Protest Number 0712-91-000434, addressing the issue of whether certain knitted, brushed fabric should be considered knit fabric or pile fabric. The fabric was ruled to be a knitted looped-pile fabric in subheading 6001.22.0000, HTSUSA. You disagree with this classification and propose instead, classification in subheading 6002.93, HTSUSA, under other knitted fabrics, of man-made fibers.

The fabric at issue, Style number 5448-OSC, consists of a 100 percent knitted base material, or pre-cursor fabric, into which acrylic yarns are laid-in or inserted during the knitting process. The laid-in yarns protrude from the base material and can be removed, leaving a plain knit fabric. The inserted yarns are brushed after the knitting process to produce a "plush" appearance.

You state in your letter that the fabric in question does not fall into the category or descriptions of heading 6001, HTSUSA, and is therefore excluded from that heading, mandating classification in heading 6002, HTSUSA. You base that position on the belief that none of the four methods of production outlined by the Explanatory Notes to the Harmonized Commodity Description and Coding System (EN), to heading 6001, HTSUSA, accurately describe the knitting procedure that is involved in the production of Style number 5448-OSC.

In particular, you address EN (4) to heading 6001, HTSUSA, which was discussed in HQ 089844 as accurately describing the fabric in question. You state that EN (4) to heading 6001, HTSUSA, is limited in its application to a discussion of imitation terry fabrics. You illustrate this point by describing in detail how terry or imitation terry is made, and offer various exhibits (A-E) of terry and fleece fabrics to support your claim. You conclude that Style number 5448-OSC is excluded from heading 6001, HTSUSA, by virtue of the fact that it does not have the requisite characteristics of the terry fabric, namely:

1. the loops which are formed
2. the horizontal stretch characteristic
3. the impossibility of removing those loops from the fabric

ISSUE:

Whether the fabric in question is classifiable under a provision for pile fabrics, in heading 6001, HTSUSA, or under a provision for other knitted or crocheted fabrics in heading 6002, HTSUSA?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), is in accordance with the General Rules of Interpretation (GRI). The GRI require 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.

The competing headings in this reconsideration of HQ 089844 are heading 6001, HTSUSA, which provides for pile fabrics, knitted or crocheted, and heading 6002, HTSUSA, which provides for other knitted or crocheted fabrics.

The definition of napped and pile fabrics for tariff purposes was stated in Tilton Textile Corp. v. United States, 77 Cust. Ct. 27, C.D. 4670 (1976), aff'd 65 CCPA 18, C.A.D. 119 (1977):

What is termed a "nap" or "napped fabrics" is produced by the raising of some of the fibers of the threads which compose the basic fabric, whereas the pile on "pile fabrics" must be the raising at intervals, in the form of loops, the entire thickness of extra threads introduced into, but not essential to the basic fabric, which thus form an "uncut pile". These loops if cut then form a "cut pile."

In Tilton, both the lower and appellate courts specifically held that for a fabric to be classifiable as pile fabric (under the previous tariff, the Tariff Schedules of the United States (TSUS)), it must have a raised pile. In addition, the appellate court found that flat floating yarns which, when cut, would create a pile, was not sufficient to cause that fabric to be considered an "unfinished" pile fabric unless it could be shown that the fabric in its uncut condition had no commercial value.

While the classification of articles under the TSUS is not determinative of the proper classification of those same articles under the HTSUSA, we have not found a valid reason to deviate from the distinction between napped and pile fabrics drawn by Tilton for this particular class of fabrics (i.e., those in heading 6001).

Unlike prior tariffs, there were no legislative hearings concerning the individual headings or subheadings contained in the HTSUSA. As such, legislative history for the HTSUSA is virtually nonexistent. The EN thus serve as the only official interpretation of the Harmonized System, providing a commentary on the scope of each of its headings.

In this area the EN are not explicit but they do indicate that for a fabric to be classifiable as a pile fabric, it must have protruding yarns (or their equivalent). The EN for heading 6001, HTSUSA, enumerate the following methods of production as those mainly used for knit pile fabrics:

(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 pile and thus give a velvet-like surface;

(2) a special warp knitting machine knits two fabrics face to face with 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 along the length of the back of the fabric.

(Emphasis added).

The fabric at issue consists of laid-in yarns, forming loops, inserted during the knitting process (and which protrude from the base material), which are later brushed.

EN (4) to heading 6001, HTSUSA, refers to the fabric at issue. The fact that it is not constructed in the same way as traditional terry-knit material does not exclude it from heading 6001, HTSUSA; the constructions described in the EN are intended as examples, not as an exhaustive listing.

In view of the EN to heading 6001, HTSUSA, it is apparent that the process involved in the production of the fabric is the governing factor in ascertaining whether that fabric is classifiable as a pile fabric.

Accordingly, if during the weaving or knitting of a fabric, yarns are caused to project from the surface(s) (i.e., the base material) of that fabric creating a "pile" appearance, that fabric will be considered a pile fabric for the purposes of the HTSUSA, even if those yarns are subsequently subjected to a brushing process. However, if a fabric is woven or knit without projecting yarns which create a "pile" surface or surfaces, and that "pile" appearance is later produced by a brushing, teaseling, or similar process, then the fabric is not considered to be a pile fabric for the purposes of the HTSUSA.

The fabric at issue is similar in its construction to the fabric discussed in HQ 084317, dated May 21, 1990. The fabric in HQ 084317 was a napped pile fabric in which short protruding loops were formed by a laid-in yarn. The laid-in yarn could be removed leaving a plain knit fabric. The finished fabric was produced by raising fibers from the laid in yarns, which were not necessary to the integrity of the basic fabric. The base material had protruding loops that were still clearly visible in the finished fabric, and that made it similar in appearance to terry cloth. The fabric was classified in subheading 6001.22.0000, HTSUSA.

It should be noted that it is the basic construction of the fabric, i.e., the presence of an additional yarn to form protruding loops that precedes the brushing, which makes this a pile fabric. A brushed fabric that did not have these protruding loops in the base material (i.e., a fabric in which the base material itself was brushed), even if it had a similar appearance, would not be a pile fabric.

Accordingly, Style number 5448-OSC is a pile fabric as provided for in heading 6001, HTSUSA.

HOLDING:

The submitted fabric, Style number 5448-OSC, was properly classified in HQ 089844, under the provision for knitted looped- pile fabric, in subheading 6001.22.0000, HTSUSA. The applicable rate of duty is 19.5 percent ad valorem. The textile category is 224.

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, 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 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, you should contact the local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director

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