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HQ 956513




September 30, 1994
CLA-2 CO:R:C:T 956513 jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 5516.43.0090

Mr. Ba-Sang Yeung
Hong Kong Economic and Trade Office
British Embassy
1150 18th Street, N.W., Suite 475
Washington, D.C. 20036

RE: Textile category designation of rayon/cotton/spandex blend sateen woven fabric; Subheading Note 1(h) to Section XI; fabric does not meet the definition for "dyed woven fabric"; meets definition for woven fabric of yarns of different colors; absence of uniformity of color

Dear Mr. Yeung:

This is in response to your letter, dated May 24, 1994, on behalf of Peyk International, Inc., regarding the classification and textile category designation of a rayon/cotton/spandex blend sateen woven fabric. A sample was submitted to this office for examination and will be returned under separate cover.

FACTS:

The fabric in question consists of a rayon cotton stretch sateen and is composed of 64 percent staple rayon, 35 percent cotton and 1 percent filament spandex. You state that the fabric contains 58.3 warp ends per centimeter and 19.7 filling picks per centimeter, and is constructed using 20/1 c.c yarns in the warp and a combination of 16/1 c.c. staple cotton yarns and 40 denier filament spandex yarns plied together in the filling. The fabric will be imported in 125 centimeter widths, is woven with a 4 by 1 satin weave, and weighs approximately 8 ounces per square yard.

You indicate that the fabric has been piece dyed and that the different shades of green manifested after the dyeing process is a result of the difference in fiber content between the warp and filling. Consequently, you contend that the proper textile designation for the fabric is not textile category 218(1), which provides for fabrics of yarns of different colors, but textile category 617, which provides for chief weight man-made fibers, twill and sateenwoven fabric. Furthermore, you state that as the "Agreed Minutes between Hong Kong and the United States", signed in 1989, determined that textile category 218(1) covers only yarn dyed fabrics, the subject sample, which is piece dyed, is precluded from classification in textile category 218(1).

ISSUE:

Whether the subject fabric is classifiable as a fabric of yarns of different color or as a dyed woven fabric?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff System of the United States Annotated (HTSUSA), is in accordance with the General Rules of Interpretation (GRI). GRI 1 requires that classification be determined according to the terms of the headings and any relative section or chapter notes. 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 textile category designation for the fabric is based on the classification of the fabric under the HTSUSA. Note 2(A) to Section XI, HTSUSA, states:

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.

The subject sample is constructed of 64 percent staple rayon, 35 percent cotton and 1 percent filament spandex. As staple rayon predominates by weight, the fabric is classifiable in chapter 55, HTSUSA, as a woven fabric of man-made staple fibers.

Note 1 to chapter 54, HTSUSA, defines the terms "man-made fibers", "synthetic fibers", and "artificial fibers":

Throughout the tariff schedule, the term "man-made fibers" means staple fibers and filaments of organic polymers produced by manufacturing processes, either:

(a) By polymerization of organic monomers, such as polyamides, polyesters, polyurethanes or polyvinyl derivatives; or

(b) By chemical transformation of natural organic polymers (for example, cellulose, casein, proteins or algae), such as viscose rayon, cellulose acetate, cupro or alginates.

The terms "synthetic" and "artificial", used in relation to fibers, mean: synthetic: fibers as defined at (a); artificial: fibers as defined at (b).

Since rayon is an organic polymer produced by the chemical transformation of natural organic polymers, it meets the definition for artificial man-made fibers. As such, the fabric is classifiable in heading 5516, HTSUSA, which provides for woven fabrics of artificial staple fibers.

In part, General Note (I)(A)(5) to the Explanatory Notes to the Harmonized Commodity Description and Coding System (EN) to Section XI, HTSUSA, states:

When deciding if an admixture is mainly a particular textile material, regard is to be taken to the textile material which predominates by weight over any other single textile material in the admixture.

The only other textile materials (other than staple rayon) present in the subject sample are cotton (35 percent) and filament spandex (1 percent). As cotton predominates by weight over spandex, this fabric is said to be mixed mainly with cotton. Accordingly, following the above steps, this fabric is a woven fabric of artificial staple fiber, containing less than 85 percent by weight of artificial staple fibers, mixed mainly with cotton.

The next step is to distinguish between fabrics of yarns of different colors and dyed woven fabric. You state that the subject sample belongs to the latter category. Subheading Note 1(h) to Section XI, HTSUSA, defines woven fabric of yarns of different colors as:

Woven fabric (other than printed woven fabric) which:

(i) Consists of yarns of different colors or yarns of different shades of the same color (other than the natural color of the constituent fiber); (emphasis added)

(ii) Consists of unbleached or bleached yarn and colored yarn; or

(iii) Consists of marl or mixture yarns.

(In all cases, the yarn used in selvages and piece ends is not taken into consideration.)

The subject sample meets the definition set out in Subheading Note 1(h)(i) as it is composed of yarns of different shades of the same color. It should be noted that this note is not limited by any particular process to achieve the result of a fabric of yarns of different colors.

Subheading Note 1(g) to Section XI, HTSUSA, defines "dyed woven fabric" as woven fabric which:

(i) Is dyed a single uniform color other than white (unless the context otherwise requires) or has been treated with a colored finish other than white (unless the context otherwise requires), in the piece; or

(ii) Consists of colored yarn of a single uniform color.

It should be clear that the instant fabric does not meet the criteria set out by the definition. The fabric has not been dyed a uniform color, as is evident in the warp and filling yarns which are not a uniform shade of green. As such, it is our opinion that the subject fabric is a woven fabric of yarns of different colors. Additionally, it is a misinterpretation of the Agreed Minutes between Hong Kong and the United States to state that category 218(1) covers only yarn dyed fabrics. In fact, this agreement does not specifically address the scope of category 218 or 218(1), but does refer to fabrics made with yarns of different colors and not yarn dyed fabrics.

In several Customs rulings it was determined that fabric which was piece dyed was nonetheless classified as woven fabric of yarns of different colors because the variation in fiber content between the warp and filling resulted in the selective dyeing of the individual fiber types, which lead to a fabric containing yarns of different colors. (See, NY 860154, dated February 26, 1991; NY 860153, dated February 26, 1991; NY 857011, dated October 26, 1990; NY 857061, dated October 26, 1990; and NY 860182, dated February 26, 1990).

As the fabric is a satin weave it is not classifiable in the statistical provision for either blue denim or jacquard woven fabrics. Thus, the subject fabric is classifiable in subheading 5516.43.0090, HTSUSA.

HOLDING:

The subject fabric is a woven fabric composed of yarns of different colors and is classifiable in subheading 5516.43.0090, HTSUSA, which provides for woven fabrics of artificial staple fibers, containing less than 85 percent by weight of artificial staple fibers, mixed mainly or solely with cotton, of yarns of different colors, other, other. The applicable rate of duty is 17 percent ad valorem and the textile category designation is 218.

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, 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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