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HQ 963787




September 4, 2002

CLA-2 RR:CR:TE 963787 RH

CATEGORY: CLASSIFICATION

TARIFF NO.: 5515.11.0005

Mr. Peter W. Klestadt
Mr. Michael T. Cone
Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt, LLP 245 Park Avenue
33rd Floor
New York, New York 10167-3397

RE: Request for Reconsideration of NY F82252, dated February 8, 2000; Legal Note 2(A), Section XI, HTSUS; Subheading Note 1(h), Section XI, HTSUS; General Explanatory Subheading Note 1(d)(ii), Section XI, HTSUS; HQ 964423, dated August 6, 2001

Dear Mr. Klestadt and Mr. Cone:

This is in reply to your letters of March 7, 2000 and February 14, 2001, on behalf of Pressman-Gutman Co., Inc., requesting reconsideration of New York Ruling Letter (NY) F82252, dated February 8, 2000.

In NY F82252, Customs classified “Gap Twill Grey Heather” and “Gap Twill Taupe Heather” fabrics under subheading 5515.11.0005 of the Harmonized Tariff Schedule of the United States (HTSUS), as woven fabrics of yarns of different colors.

You claim that the fabrics are properly classified under subheading 5515.11.0040, HTSUS, as other woven fabrics of synthetic staple fibers, satin weave or twill weave.

FACTS:

The composition of the subject fabrics is 64 percent staple polyester, 33 percent staple rayon and 3 percent filament spandex. The warp and filling are constructed with an identical two-ply staple yarn. A small amount of spandex filament is added in the filling for elasticity.

The two-ply staple yarn (polyester and rayon) comprises 97 percent of the fabric and is a fiber dyed yarn. The dyeing process is as follows:

The first step is to mix natural white raw fibers in a ratio of 65% polyester to 35% rayon. Second, the resulting fiber “salad” is sprayed with dye in a sealed tank, and a uniform color is achieved. Third, an amount of the undyed, natural white raw fiber from Step 1 is mixed with the dyed fibers from Step 2. The third step produces a fiber salad with a two-toned effect. The fibers are combed and spun into yarn. The yarn is then plied and woven into fabric. The same yarn is used in the warp and the filling. The only difference between the warp and the filling is that natural spandex is twisted into the ply of the filling. Due to the two-tone fibers from which the yarn is derived, the finished fabric exhibits a “heathered” visual effect.

ISSUE:

Are the “Gap Twill Grey Heather” and “Gap Twill Taupe Heather” fabrics classified under subheading 5515.11.0005, HTSUS, as woven fabrics of yarns of different colors, or under subheading 5515.11.0040, HTSUS, as other woven fabrics of synthetic staple fibers, satin weave or twill weave?

LAW AND ANALYSIS:

Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall 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 GRIs will be applied, in their appropriate order.

Additionally, the Explanatory Notes (EN’s) to the Harmonized Commodity Description and Coding System constitute the official interpretation of the nomenclature at the international level. The EN’s are not legally binding. However, they do represent the considered views of classification experts of the Harmonized System Committee. It has therefore been the practice of the Customs Service to follow, whenever possible, the terms of the EN’s when interpreting the HTSUS.

Classification of the subject merchandise under heading 5515, HTSUS, is undisputed. However, the classification of the subject merchandise at the subheading level depends upon the interpretation of the legal notes.

Legal Note 2(A) to Section XI, HTSUS, provides:

Goods classifiable in Chapter 50 to 55 or in heading 5809 or 5902 and of a mixture of two of 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.

Based on the application of Legal Note 2(A) to Section XI, HTSUS, the subject woven fabrics would be classified based upon a chief weight of synthetic fibers, specifically polyester.

In discussing woven fabrics, the General EN’s to Chapters 50 to 55 of Section XI provide:

The woven fabrics of Chapters 50 to 55 are products obtained by interlacing textile yarns (whether of the kinds classified in Chapters 50 to 55 or those regarded as twine, cordage, etc., of heading 5607), rovings, monofilament or strip and the like of Chapter 54, loop wale-yarn, narrow ribbons, braids or narrow fabrics (consisting of warp without weft assembled by means of an adhesive, etc.) on warp and weft looms. . . .

Subheading Note 1(d)(ii), states:

In this Section and, where applicable, throughout the tariff schedule, the following expressions have the meanings hereby assigned to them:

(d) Colored (dyed or printed) yarn

Yarn which:

Consists of a mixture of dyed fibers of different colors or of a mixture of unbleached or bleached fibers with colored fibers (marl or mixture yarns), or is printed in one or more colors at intervals to give the impression of dots;

Subheading Note 1(h) to Section XI, HTSUS, defines woven fabric of yarns of different colors, as follows:

Woven fabric (other than printed woven fabric) which:

Consists of yarns of different colors or yarns of different shades of the same color (other than the natural color of the constituent fibers);

Consists of unbleached or bleached yarn and colored yarn; or

Consists of marl or mixture yarns.

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

We agree with you that the manufacturing process in question produces a “marl or mixture yarn” as described in Subheading Note 1(d)(ii). Moreover, we agree with you that the fabrics at issue are woven from yarns of the same color (a mixture of unbleached fibers and dyed fibers - referred to by you as a “single colored yarn”). We disagree with you, however, that the phrase “yarns of different colors” in Subheading Note 1(h)(iii) to Section XI, HTSUS, requires that the woven fabrics in question be made from two differently colored marl or mixture yarns.

Subsections (i) and (ii) to Subheading Note 1(h) require that the yarns be of at least two different manufacturing processes, i.e., subsection (i) requires that the yarns be of “different colors” or “different shades of the same color”, and subsection (ii) requires an “unbleached or bleached yarn” and a “colored yarn.” Subsection (iii), on the other hand, only requires “marl or mixture yarns”, which may be of different colors, but are not so required by the terms of the statute.

The next issue is the effect of the spandex fibers on the classification of the merchandise. In Headquarters Ruling Letter (HQ) 964423, dated August 6, 2001, Customs addressed whether woven fabrics with a small amount of dyed spandex fibers whose color is invisible to the naked eye but is of a different color than the majority of the yarn should be classified as a dyed woven fabric or as a fabric consisting of yarns of different colors. The color of the spandex fiber in the samples in that case would not have been apparent if an analysis of the fiber weight had not been done. In HQ 964423, Customs stated:

In the subject merchandise, the spandex thread is of a de minimis quantity, however, since the spandex thread provides a noticeable amount
of elasticity to the overall composition of the fabric, Customs does not believe that the spandex filament can be disregarded for classification purposes based on the de minimis rule. In spite of this, Customs believes that requiring laboratory testing in order to determine whether the 1 ply spandex filament is dyed the same color as the other plys in the fabric when these spandex filaments are invisible to the naked eye, imposes a burden on importers as well as the Customs Service. Increased levels of laboratory testing on dyed fabrics to determine the HTSUSA classification at the subheading level when spandex filaments are not plainly visible with the eye creates an absurd and anomalous result.

[C]ustoms believes that the classification of the subject merchandise as woven fabrics of yarns of different colors, when those yarns on which the classification hinges are not visible to the naked eye, creates an absurd and unreasonable requirement for laboratory testing. As such Customs will disregard the small amount of 1 ply spandex filament yarns which are a different color for classification of the subject merchandise. Therefore, the woven fabrics will be classified based on the cotton ply which predominates by weight in the overall composition of the subject fabrics without regard to any color differences in the spandex yarn discovered only under meticulous fiber content analysis.

Accordingly, we agree with you that the de minimus amount of spandex filament yarn should be disregarded in this case. Nevertheless, based on the foregoing analysis we find that the fabrics were correctly classified in NY F82252, under subheading 5515.11.0005, HTSUS.

HOLDING:

NY F82252 is AFFIRMED. The fabrics in question are classifiable under subheading 5515.11.0005, HTSUS, which provides for “Other woven fabrics of synthetic staple fibers: Of polyester staple fibers: Mixed mainly or solely with viscose rayon staple fibers: Of yarns of different colors, except blue denim or jacquard weave.” They are dutiable at the general column one rate at 15.3 percent ad valorem, and the textile category 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 renegotiations and changes, to obtain the most current information available, we suggest that your client check, close to
the time of shipment, the Status 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, your client should contact the local Customs office prior to importing the merchandise to determine the current applicability of any import restraints or requirements.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division

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