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HQ 964577




October 13, 2000

CLA-2 RR:CR:TE 964577 ss

CATEGORY: CLASSIFICATION

TARIFF NO.: 5210.41.6000; 5208.42.5000

Port Director
U.S. Customs
200 E. Bay Street
Charleston, South Carolina 29401

RE: Request for Internal Advice 24/99; classification of unbleached fabrics containing tracer yarns

Dear Sir:

This ruling is in response to your request for Internal Advice regarding the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of unbleached fabrics containing tracer yarns. The Request for Internal Advice was initiated by Powell, Goldstein, Frazer & Murphy, LLP, on behalf of Groot Sales Corporation. We note that a meeting with counsel for Groot Sales Corporation was held on May 4, 2000, and counsel made a supplemental submission dated June 14, 2000.

FACTS:

The subject merchandise consists of cotton woven fabric containing colored tracer yarns used in the manufacture of offset printing blankets. The blanket is composed of several layers of fabric coated with rubber and joined together. It is then incorporated into machinery used to print newspapers and magazines.

You state that, “ At the request of Groot’s customers, i.e., the producers of the offset printing blankets, Technofabric incorporates a single colored yarn every six inches or so when manufacturing the unbleached fabric. This is in order to permit the offset printing blanket producer to identify the direction of the warp so that the blanket is cut correctly.”

The subject merchandise was classified by Customs as cotton woven fabric “of yarns of different colors” due to the presence of the tracer yarns. Counsel for the importer disputes this classification and states that the merchandise at issue should be classified as unbleached woven fabric since the colored yarns contained in the fabric represent only a small portion of the fabric. In support of this claim counsel refers to General Rule of Interpretation 2(b) and the de minimis rule.

Although two different samples (classified in different subheadings) were analyzed by the Customs laboratory in Savannah, the issue of whether the fabric should be classified as an unbleached woven fabric or a woven fabric of yarns of different colors is the same for both fabrics. The first sample, referred to as roll #304, was found to be a plain woven fabric composed of 70.3 percent cotton and 29.7 percent rayon. It contains 31.4 warp ends per centimeter and 20.6 filling picks per centimeter. It is constructed using 2-ply yarns in the warp and 1-ply yarns in the filling. This fabric weighs 168.84 g/m². Based on the data developed by the Customs laboratory, this fabric has an average yarn number of 49 in the metric system. The laboratory reports that the fabric is of yarns of different colors based on the fact that every 6.5 inches one two-ply warp end has been inserted which has been dyed a permanent color while the rest of the yarns are unbleached. That is, every approximately 517 warp ends a dyed warp end has been used as a marker to indicate warp direction.

The second sample, referred to as roll #98027, is a plain woven fabric composed of 100 percent cotton. It contains 37.5 warp ends per centimeter and 30.7 filling picks per centimeter. It is manufactured using 2-ply yarns in the warp and 1-ply yarns in the filling. This fabric weighs 113.34 g/m². Based on the data developed by the Customs laboratory, this fabric has an average yarn number of 93 in the metric system. The laboratory reports that the fabric is of yarns of different colors based on a 2-ply colored yarn in the warp every 6.5 inches. The balance of the yarns are unbleached. The purpose of the colored yarn in both fabrics is to identify the warp direction so that the fabric will be oriented properly in subsequent manufacturing operations undertaken to complete the printing blanket.

ISSUE:

Are these fabrics properly classified as “unbleached fabrics” or as “fabrics of yarns of different colors”?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is governed according to 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.

All parties agree that the subject merchandise is classified in headings 5208, 5210, or 5211, HTSUS, depending on the percentage by weight of cotton. The issue however, is the appropriate classification at the subheading level, that is, between “unbleached fabrics” and “fabrics of yarns of different colors.” The relevant notes to this classification issue are thus, subheading note 1(e) and subheading note 1(h) to section XI, HTSUS.

Subheading note 1(e) to section XI, HTSUS, defines “unbleached woven fabric” as “woven fabric made from unbleached yarn and which has not been bleached, dyed or printed. Such fabric may have been treated with a colorless dressing or a fugitive dye.”

Subheading note 1(h) to section XI, HTSUS, states that the term “woven fabric of yarns of different colors” is defined 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 fibers);

(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 the selvages and piece ends is not taken into consideration.)

Although for the most part, the subject merchandise consists of unbleached yarns, there are several 2-ply warp yarns that have been dyed a solid color. Counsel concedes that these yarns have not been dyed with a fugitive dye. Accordingly, it is clear that the subject merchandise is precluded from classification as an unbleached woven fabric and that the merchandise falls squarely within the definition for woven fabric of yarns of different colors. As this merchandise is eo nomine provided for under the terms of the notes, we find any arguments going beyond GRI 1, not only superfluous but also irrelevant.

Similarly we find any reference to de minimis (and any referenced rulings and court cases) without merit. The terms of subheading notes 1(e) and 1(h) to section XI, HTSUS, do not provide any kind of quantitative or qualitative standard which would allow the classification of a fabric with a “small” amount or number of colored yarns located in the body of a fabric as an unbleached woven fabric. To the contrary, the terms of the notes are clear on their faces; any amount/number of colored yarns will be considered and will disqualify a fabric from being considered an unbleached woven fabric, when not located in the selvages and piece ends. Furthermore we disagree with counsel’s claim that the tracer yarns are “not present in a commercially meaningful quantity” and that they “are not significant enough to really change or affect the nature of the blanket.” As counsel clearly points out in the submission the colored yarns are present so that the offset printing blanket producer can identify the direction of the warp. Advising the blanket producer of the warp direction of the fabric ensures that the blanket is cut correctly. These colored yarns are not located along the selvage or piece ends, but are distributed along the full width of the fabric. Consequently, the presence of these tracer yarns is vital to the function and identity of the ultimate product. Without these yarns the fabric would be cut incorrectly and would be worthless.

In the supplemental submission counsel elaborates on the applicability of the de minimis rule. However, we find the cited rulings on chemicals and handbags to be unpersuasive. In Headquarters Ruling Letter (HQ) 084937, dated November 29, 1989, Customs explicitly stated that a small number of colored yarns could not be disregarded when determining whether a fabric was classified as a fabric of yarns of different colors. The fabric at issue in HQ 084937 was a natural white fabric with a series of brown yarns woven into the sides to control shrinkage. Citing to subheading note 1(h) to section XI, HTSUS, Customs found that the brown yarns did not function as selvedges but rather had a novel technical use. Similarly, in the instant case, the colored yarn has a novel technical use and cannot be excluded from consideration in determining whether the fabric is classified as a fabric of yarns of different colors. Accordingly, we agree with Customs classification of this merchandise as woven fabrics of yarns of different colors.

HOLDING:

The fabric referenced as roll #304 is classified in subheading 5210.41.6000, HTSUSA, which provides for, woven fabrics of cotton, containing less than 85 percent by weight of cotton, mixed mainly or solely with man-made fibers, weighing not more than 200 g/m²: of yarns of different colors: plain weave: of numbers 43 to 68. The applicable general column one rate of duty is 12.2 percent ad valorem and the quota category is 218.

The fabric referenced as roll #98027 is classified in subheading 5208.42.5000, HTSUSA, which provides for, woven fabrics of cotton, containing 85 percent or more by weight of cotton, weighing not more than 200 g/m²: of yarns of different colors: plain weave, weighing more than 100 g/m²: other: of number 69 or higher number. The applicable general column one rate of duty is 14.7 percent ad valorem and the quota category is 218.

You are to mail this decision to the internal advice applicant no later than 60 days from the date of this letter. On that date the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division

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