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HQ 960783




June 3, 1998

CLA-2 RR:CR:TE 960783 jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 5903.10.2090

Port Director
U.S. Customs Service
300 S. Ferry Street
Terminal Island, CA 90731

RE: Decision on Application for Further Review of Protest No. 2704-97-101180; textile fabrics laminated to PVC sheeting

Dear Sir:

This is a decision on application for further review of a protest timely filed by Grunfeld, Desiderio, Lebowitz & Silverman LLP, on behalf of LG Chemical America, Inc., on March 28, 1997, against your decision regarding the classification of certain textile fabrics laminated to PVC sheeting. Customs issued a notice to redeliver on December 31, 1996. Samples were submitted to this office for examination.

FACTS:

The subject merchandise consists of a two layer material referred to as "embossed vinyl with a textile backing". The Protestant states that the merchandise consists of:
a cellular polyvinyl chloride (PVC) sheeting with a 100 percent nylon tricot knit backing.... The PVC sheeting actually consists of three distinct layers: an inner PVC foam layer expanded (and given cellular characteristics) by use of a blowing agent, an outer PVC skin which is printed and embossed to give the appearance of leather, and the textile backing. The PVC layers together weigh approximately 451 g/yd, comprising 78.2 % of the total, while the fabric component weighs approximately 126 g/yd, comprising 21.8 % of the total.

Additionally, the Protestant claims that the subject merchandise is used solely for the construction of imitation leather golf bags.

Examination by the Customs laboratory reveals that the merchandise is a knit nylon fabric having an application of polyvinyl chloride, and that the knit fabric has the "characteristics of warp knit raised loop pile construction".

At the time of entry, Customs classified the merchandise in heading 6001, Harmonized Tariff Schedule of the United States (HTSUS), as looped pile fabrics of man-made fibers. The Protestant disagrees with this classification determination and advocates classification of the subject merchandise in heading 3921, HTSUS, (or in the alternative, heading 5903, HTSUS) for the following reasons:

1. The textile does not have the construction of "pile fabric"; that is, the raised effect of the fabric is not achieved by the inclusion of additional yarns during the knitting process, but is a result of "brushing" after the knitting process;

2. The fabric serves no other purpose other than as reinforcement for the PVC layer.

ISSUE:

What is the appropriate classification for the subject merchandise?

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). GRI 1 provides that classification shall be determined according to the rules 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.

I. Is this merchandise considered a "pile"?

Heading 6001, HTSUS, provides for pile fabrics, including "long pile" fabrics and terry fabrics, knitted or crocheted. The EN to that heading state:

Unlike the woven fabrics of heading 58.01, the products of this heading are obtained by knitting. The following methods of production are those mainly used:

(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 a pile and thus give a velvet-like surface;

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

Knitted or crocheted pile fabrics, impregnated, coated, covered or laminated, remain classified in this heading.

The Protestant is correct in his assertion that the subject merchandise does not meet the terms of methods 1-3. However, there seems to be some question as to whether the fourth method described by the EN, that is, textile yarns to form loops, is an appropriate description of the knitting method for the subject merchandise. There appear to be two schools of thought with reference to the interpretation of the basic construction of this merchandise. The Customs Laboratory report indicates that the subject merchandise is of "warp knit raised loop pile" construction. That is to say, in purely technical terms, the fundamental construction of this merchandise is evidence of its future state as a pile fabric. Although technically this statement is correct, there is another factor to take into consideration.

Customs has issued a number of rulings discussing a variety of fabrics which have set forth a precedence that the future state of the fabric, is not determinative of its classification. In the analysis portion of these rulings it has been consistently stated that Customs will examine the process involved in the production of the fabric and the appearance of that fabric as the governing factors in ascertaining whether that fabric is classifiable as a pile fabric. In essence, the knitting process of the fabric must result in raised loops or floats which protrude from the surface of the base fabric. In Headquarters Ruling Letter (HQ) 952921, dated May 7, 1993, addressing how much a yarn should "protrude" to qualify for classification in heading 6001, HTSUS, it was determined that:

...there remains some question as to whether the loops created by the laid-in yarn protrude enough to warrant classification under heading 6001, HTSUSA, as a pile fabric. It is this office's opinion that they do. The EN to heading 6001, HTSUSA, provides no quantitative guidance as to how much loops must protrude; it only describes types of processes which produce pile fabrics. As the fabric at issue meets the requirements of EN(4), we are unwilling to create quantitative prerequisites which would mandate that looped yarn be of a certain length in order to qualify as a pile fabric. We note, however, that in situations where the fabric has been knitted so tightly that in effect no loops have been created, the fabric will not qualify as a pile fabric classifiable under heading 6001, HTSUSA.

The subject fabric was examined both prior to and subsequent to the napping process. The "pile-like appearance" of this merchandise is a result of a subsequent brushing process and not its initial construction. Accordingly, although we do not disagree with our Laboratory's findings that as a technical matter this merchandise is engineered to be pile, it is the opinion of this office that given the precedential value of our prior rulings, the fact that at the time of knitting this merchandise does not exhibit any raised loops or floats, but only after subsequent brushing, the subject merchandise is precluded from classification as pile.

II. Is the textile backing purely for reinforcement purposes?

In making an accurate classification determination with respect to the subject merchandise, pursuant to GRI 1, all relevant section and chapter notes must be applied. The EN to chapter 39, HTSUS, under Plastics and textile combinations, beginning at page 597 state, among other things:

Wall or ceiling coverings which comply with Note 9 to this Chapter are classified in heading 39.18. Otherwise, the classification of plastics and textile combinations is essentially governed by Note 1(h) to Section XI, Note 3 to Chapter 56 and Note 2 to Chapter 59. The following products are also covered by this Chapter:

(d) Plates, sheets and strip of cellular plastics combined with textile fabrics, felt or nonwovens, where the textile is present merely for reinforcing purposes.

In this respect, unfigured, unbleached, bleached or uniformly dyed textile fabrics, when applied to one face only of these plates, sheets or strip, are regarded as serving merely for reinforcing purposes. Figured, printed or more elaborately worked textiles (e.g., by raising) and special products, such as pile fabrics, tulle and lace and textile products of heading 58.11, are regarded as having a function beyond that of mere reinforcement.

Note 1(h) to section XI states that this section does not cover:

Woven, knitted or crocheted fabrics, felt or nonwovens, impregnated, coated, covered or laminated with plastics, or articles thereof, of chapter 39.

Legal Note 2(a)(5) to chapter 59, HTSUS, states that heading 5903, HTSUS, applies to textile fabrics, impregnated, coated, covered or laminated with plastics, whatever the weight per square meter and whatever the nature of the plastic material (compact or cellular), other than:

Plates, sheets or strip of cellular plastics, combined with textile fabric, where the textile fabric is present merely for reinforcing purposes (chapter 39)

Chapter 60, HTSUS, provides for knitted or crocheted fabrics. Note 1(c) to that chapter states that this chapter does not cover:

Knitted or crocheted fabrics, impregnated, coated, covered or laminated, of Chapter 59 . However, knitted or crocheted pile fabrics, impregnated, coated, covered or laminated, remain classified in heading 6001.

In classifying this merchandise a comprehensive analysis requires more than a simplistic approach. In this instance we clearly have a plastic which has been combined with a textile fabric. It is clear that the underlying understanding of these notes, when read conjunctively, is that if a textile acts merely for reinforcing purposes when combined with cellular plastic, the good is NOT to be precluded from classification in chapter 39. Clearly stated, the presumption in the EN to chapter 39 is that pile fabrics are regarded as having a function which is beyond mere reinforcement. If the textile backing acts as more than "mere enforcement", classification in chapter 39 is not warranted. The Protestant makes reference to a number of rulings which, in Protestant's opinion, provide support for a finding that the textile in the subject merchandise is present only for reinforcement of the plastic. We do not agree for the reasons set forth below.

The Protestant refers to HQ 086670, dated March 26, 1990, which classified certain merchandise composed of a top layer of compact plastic, a middle layer of foamed plastic and a bottom layer of textile materials, and HQ 083288, dated March 26, 1989, which classified similar merchandise. In both rulings the merchandise was classified in heading 3921, HTSUS. In the opinion of the Protestant the submitted merchandise is nearly identical to the merchandise addressed in HQ 086670 and HQ 083288 and thus should be classified accordingly. The analysis in neither one of those rulings provides any indication of comparable ratios with respect to the plastics portion and the textile backing. Additionally, although the rulings do describe the textile backing as being "very thin", no information is given with respect to how this merchandise will be used. Given these variables we cannot say with the same certainty as the Protestant that the subject merchandise and the merchandise in the rulings referenced above are identical in nature.

In HQ 081489, dated March 27, 1989, the merchandise at issue consisted of different samples of combination plastic/textile materials. The facts indicated that the merchandise was used commonly in automobile upholstery as well as other applications, such as luggage and handbags. All of the samples in HQ 081489, except for sample 5, have a textile backing which serve only to support the plastic. In the applications noted in the ruling, particularly for the automobile upholstery, the textile backing would not be exposed; as such, the textile does not provide a tactile or visual effect. As such, there is no indication either from the physical description of the merchandise, nor its intended use, that the textile will serve any purpose other than reinforcement.

In HQ 085100, dated September 11, 1989, a boys' imitation leather jacket featuring a woven man-made fiber lining and an outer shell consisting of a nontransparent polyvinyl chloride type cellular plastics coating or covering which completely obscured the underlying warp knit pile fabric was classified in heading 3921. In this case no function was attributed to the textile backing other than reinforcement. The plastics portion was considered more substantial and critical to the garment than the textile and thus classification devolved to heading 3921.

Protestant accurately notes several glove rulings (HQ 953768, dated July 23, 1993, HQ 088539, dated June 6, 1991) wherein a determination was made that the textile backing was present for more than mere reinforcement purposes. Additionally, reference is made to NY A81621, dated April 16, 1996, where in discussing a warp knit polyester man-made fiber fabric that had been brushed, dyed and printed to simulate natural leather, a similar conclusion was reached. Protestant tries to discount these rulings by stating that this is not the case with the subject merchandise. We however disagree. In the case of the subject merchandise we are not convinced that the textile backing will serve only to reinforce the plastic. As a matter of fact, in the application noted by the Protestant, that is, a golf bag, we believe that the textile will serve an explicit purpose- it will provide a soft interior lining for the golf bags into which the clubs will be positioned. Much of the golf clubs sold in today's market consist of graphite shafted clubs which are prone to scratching. Many golf bags are thus designed with a soft textile interior in order to reduce some of the abrasion which could be caused by the absence of such a liner. In addition to this tactile motivation, the textile interiors are tastefully coordinated to match the exterior color, thus providing a visual motivation for the purchase of a particular golf bag.

As such , it is our determination that in the case of this particular merchandise, the fabric has a role which is beyond "mere reinforcement".

We thus come to two conclusions: the subject merchandise is not pile (it lacks the construction thereof), and the textile interior has a purpose which is beyond mere reinforcement. In so stating, we must devolve to heading 5903, HTSUS.

HOLDING:

The subject merchandise is properly classified in subheading 5903.10.2090, which provides for textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902: with polyvinyl chloride: of man-made fibers: other: over 70 percent by weight of rubber or plastics: other. The applicable rate of duty is 2.5 percent ad valorem.

The protest should be granted in full and a copy of this ruling should be appended to the CF 19 Notice of Action to satisfy the notice requirement of section 174.30(a) Customs Regulations.

In accordance with Section 3(A)(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 the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the 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 the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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