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HQ 955373


June 1, 1994

CLA-2 CO:R:C:T 955373 SK

CATEGORY: CLASSIFICATION

TARIFF NO.: 5515.22.1000

Director
U.S. Customs Service
P.O. Box 1490
St. Albans, VT 05478

RE: Decision on Application for Further Review of Protest No. 0201-93-100255; classification of twill woven man-made fiber/wool blend fabric; subheading 5512.22.1000, HTSUSA; Note 2 to Section XI.

Dear Sir:

This is a decision on application for further review of a protest timely filed on November 5, 1993, by A.N. Deringer, Inc., on behalf of Forsythe Woolens, against your decision regarding the classification of twill woven man-made staple fiber/wool blend fabric.
FACTS:

At issue is the proper classification of twill woven man-made staple fiber/wool blend fabric. An entry of the subject fabric was made on February 25, 1993, and liquidated on May 28, 1993. Protestant claims that the fabric was erroneously classified under subheading 5515.19.0090, HTSUSA, and that classification is proper under subheading 5515.22.1000, HTSUSA. It is your position that since the invoice indicates that polyester predominates by weight over the other fibers, this product is of polyester.

A sample of the subject fabric was obtained from the importer and submitted to the Customs laboratory at New York. Customs requested samples of both colors of the subject fabric, but the importer submitted only the medium grey because a sample of the winter white was not available. The importer claims that the fiber content and other specifications of the two different colored fabrics are identical, with the exception that one fabric has been dyed.

ISSUE:

What is the proper classification of the fabric at issue?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes, taken in order. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI's.

We note that for the purposes of this analysis, we are adopting the data provided by the Customs laboratory with regard to the fabric's fiber content. The fabric sample was found by the Customs laboratory to be 3-thread twill woven fabric composed of 45.1 percent staple acrylic, 28.8 percent wool, 22.5 percent polyester and 3.6 percent staple nylon. It contains 13.4 single yarns per centimeter in the warp and 9.4 single yarns per centimeter in the filling. This fabric has been constructed using marl or mixture yarns, and weighs 232.8 grams per square meter.

Note 2 to Section XI of the HTSUSA sets forth the rules for the classification of woven fabric composed of two or more textile fabrics. Note 2 reads:

(A) Goods classifiable in chapters 50 to 55 or in heading 5809 or 5902 and of a mixture of two or more textile materials are to be classified as if consisting wholly of that one textile material which predominates by weight over each other single textile material;

When no one textile material predominates by weight, the goods are to be classified as if consisting wholly of that one textile material which is covered by the heading which occurs last in numerical order among those which equally merit consideration.

(B) For the purposes of the above rule:

(a) Gimped horsehair yarn (heading 5110) and metalized yarn (heading 5605) are to be treated as a single textile material the weight of which is to be taken as the aggregate of the weights of its components; for the classification of woven fabrics, metal thread is to be regarded as a textile material;

(b) The choice of the appropriate heading shall be effected by determining first the chapter and then the applicable heading within the chapter, disregarding any materials not classified in that chapter;

(c) When both chapters 54 and 55 are involved with any other chapter, chapters 54 and 55 are to be treated as a single chapter;

(d) Where a chapter or heading refers to goods of different textile materials, such materials are to be treated as a single textile material.

In applying Note 2 of Section XI to the classification of the subject fabric, we must first determine which headings provide for the various fibers that comprise this fabric. Chapter 55 provides for man-made staple fibers. Chapter 51 provides for wool. Since the staple acrylic, staple polyester and staple nylon used in this fabric are man-made staple fibers of chapter 55, they must be aggregated before making a weight comparison with the fabric's wool component classifiable in chapter 51. The aggregate of acrylic, nylon and polyester represents 71.2 percent of the subject fabric's total fiber content. The fabric's wool content is 28.8 percent. Accordingly, the staple man-made fiber component of the fabric predominates by weight over the wool and the fabric is classifiable in chapter 55.

Heading 5515, HTSUSA, provides for other woven fabrics of synthetic staple fibers. Since the acrylic, nylon and polyester components of the subject fabric meet the definition for synthetic fiber set forth in Note 1 to chapter 54, and all of the man-made fibers are staple fibers, classification is proper within this heading.

Note 2(B)(b) to Section XI states that after determining the proper chapter, any materials not classifiable in that chapter must be disregarded in determining the proper heading and subheading. As set forth supra, the subject fabric is comprised of 45.1 percent acrylic, 22.5 percent polyester and 3.6 percent nylon. It was determined that as the man-made staple fiber components of the subject fabric predominated by weight in their aggregate, they are determinative of classification and the fabric will be classifiable as either acrylic, polyester or nylon. Since the acrylic predominates by weight over the other man-made staple fibers, the fabric is deemed to be made of acrylic staple fibers for classification purposes.

Having determined that this product is of acrylic staple fiber, we have to determine what other fiber the acrylic is predominantly mixed with. The other fiber components are polyester (22.5%), nylon (3.6%) and wool (28.8%). Since wool predominates by weight over the polyester and nylon, this fabric is of acrylic staple fibers mixed mainly with wool and classification is proper under subheading 5512.22.1000, HTSUSA.

Based on the fiber content as determined by the Customs laboratory, this office agrees with the contention of the protestant that the woven fabric is classifiable in subheading 5515.22.1000, HTSUSA. This decision pertains to the subject merchandise for which a fabric sample was provided (i.e., the grey fabric). If laboratory analysis reveals the winter white fabric to be of identical composition, the classification set forth in this ruling is precedential.

HOLDING:

The medium grey twill woven man-made staple fiber/wool blend fabric is classifiable under subheading 5515.22.1000, HTSUSA, which provides for "[O]ther woven fabrics of synthetic staple fibers: of acrylic or modacrylic staple fibers: mixed mainly or solely with wool or fine animal hair: other...," dutiable at a rate of 14.3 percent ad valorem. The applicable textile quota category is 624.

The protest is granted in full. A copy of this decision should be attached to the Form 19 and provided to the protestant as part of the notice of action on the protest.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with this decision must be accomplished prior to the mailing of the decision.

Sixty days from the date of this decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and to the public via the Diskette Subscription Service, Lexis, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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