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HQ 963809




May 10, 2002

CLA-2 RR:CR:TE 963809 SG

CATEGORY: CLASSIFICATION

TARIFF NO.: 6206.90.3030

Steven S. Weiser, Esq.
Akin, Gump, Strauss, Hauer & Feld, L.L.P. 590 Madison Avenue, 20th floor
New York, New York 10022

RE: Classification of Women's Tencel Lyocell Shirt; Legal Note1 to Chapter 54; Synthetic and Artificial Fibers; No Chemical Transformation

Dear Mr. Weiser:

This is in response to your request dated February 1, 2000, filed on behalf of your client, Liz Claiborne, Inc., requesting a binding classification ruling under the Harmonized Tariff Schedules of the United States Annotated (HTSUSA), of a woman's blouse. A sample was submitted. In response to a Freedom of Information Act request you submitted, we provided you with copies of the documents relating to the actions of the Harmonized System Review Sub-Committee on Note 1(b) relating to the tariff classification of lyocell fiber as an artificial fiber. By letter dated April 2, 2001, you addressed the impact of a proposal by the government of Canada to amend the Harmonized System Nomenclature and the Explanatory Note to Chapter 54 Note 1(b) on your application for a binding ruling. In addition, on February 2, 2002, you met with members of the Textile Branch concerning the proposed classification ruling.

FACTS:

The garment at issue is a woman's shirt made of 100% woven lyocell fabric. The shirt features short sleeves, a pointed collar, a full front opening secured by eight buttons, and a hemmed shirttail bottom. The lyocell used in this case was manufactured under the trade name of Tencel®.

It is the your position that the shirt is properly classified in subheading 6206.90.0040, HTSUS, which provides for "[w]omen's or girls' blouses, shirts and shirt blouses: [o]f other textile material: [o]ther." It is your position that lyocell is not an artificial fiber, but an “other” fiber, and that a shirt of this fabric should be classified as a shirt of other textile materials not specifically identified. You have provided an analysis of the production processes for lyocell to support your position. Also provided for our review were two affidavits that describe the method by which lyocell is produced, state that its formation does not involve a chemical transformation, and conclude that lyocell is not a man-made fiber as defined in Legal Note 1 to chapter 54, HTSUS, or as defined in the HTSUS. The statements that lyocell is not man-made were linked to the tariff definition of man-made.

The Customs laboratory reviewed the documents you submitted as the analysis was highly technical and contained various chemical formulae.

ISSUE:

What is the tariff classification of the woman's 100% woven lyocell shirt under the HTSUSA? Is lyocell an artificial fiber?

LAW AND ANALYSIS:

The classification of goods under the HTSUS 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. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI's may be applied.

Chapter 62, HTSUS, provides for "[a]rticles of apparel and clothing accessories, not knitted or crocheted." Heading 6206, HTSUS, provides for, inter alia, women's shirts. As the subject woven shirt is not knitted or crocheted, it classifiable in heading 6206, HTSUS. This is not in dispute. The only area of dispute is the classification at the six digit subheading level. In classifying these garments at the six-digit subheading level, we have to determine whether the lyocell fabric is considered a fabric of artificial or synthetic fibers under the HTSUS.

Lyocell is a generic term recognized by the Federal Trade Commission as a "subclass of rayon”, and described as a class of fibers of regenerated natural cellulose. According to the Kirk-Othmer Encyclopedia of Chemical Technology, Volume Number 10, Fourth Edition (1994), “(a) regenerated fiber is one formed when a natural polymer, or its chemical derivative, is dissolved and extruded as a continuous filament, and the chemical nature of the natural polymer is either retained or regenerated after the fiber formation process.

Since lyocell is not an eo nomine fiber in the tariff, when classifying garments made of lyocell we have to determine whether lyocell is encompassed by any of the fibers which are specifically named or whether it would reside in the “other” provision under the heading for the apparel. Lyocell does not fall within the rubic of wool, cotton, or silk. The only remaining expressly named fiber grouping is man-made fibers, which term is specifically defined as follows in Note 1 to Chapter 54, HTSUS:

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).

The terms "man-made", "synthetic" and "artificial" shall have the same meanings when used in relation to "textile materials".

It is your position that lyocell is not a synthetic fiber as it is not produced by polymerization of organic monomers, but rather a physical change in form of a pre-existing organic polymer-namely cellulose. We agree.

You argue that lyocell does not meet the definition of an artificial fiber either, since it is not produced by a “chemical transformation” as is required in the legal note above. You state that “artificial fiber” as defined in Note 1(b) does not include all fibers manufactured from natural organic polymers, but rather only those manufactured by chemical transformation. We agree. Artificial fibers do not include natural cellulosic fibers such as cotton, flax or ramie. The term “chemical transformation” is generally understood to mean altering the internal bonds of a compound. It is claimed that in the manufacture of lyocell, internal bonds are not chemically altered in order to produce the fiber; that the process is purely a physical change in form from wood pulp to fiber; and absent a chemical transformation of the cellulose, lyocell cannot be considered an artificial fiber within the tariff meaning of that term.

You conclude that since lyocell does not meet the definitions of any man-made fiber, it is in effect a natural cellulosic fiber.

Lyocell is a generic term for manufactured or regenerated fibers made of wood pulp cellulose. Although it is given a separate generic name, in 1996, the Federal Trade Commission (FTC) added lyocell, as a sub-category of rayon, an artificial fiber, to the list of approved generic names. The FTC defines lyocell fibers as cellulose fibers obtained by an organic solvent spinning process. (“Organic solvent” is defined as “a mixture of organic chemicals and water.” “Solvent spinning” is defined as “dissolving and spinning without the formation of a derivative.”). Courtaulds Fibers, Inc. markets the fiber under the registered tradename Tencel® and is credited with the development of this fiber.

Lyocell is repeatedly defined as a man-made and manufactured “cellulosic fiber”. Several textile sources, including Kosa's Dictionary of Fiber & Textile Technology define “cellulosic fiber “ as a fiber composed of, or derived from, cellulose. Examples of cellulose fibers are rayon (regenerated cellulose), acetate (cellulose acetate), and triacetate (cellulose triacetate). All of these are considered to be artificial cellulose fibers. As lyocell is produced from wood pulp, it meets the definition of a cellulosic fiber.

Lyocell is very closely related to viscose rayon, itself a regenerated cellulosic fiber. Both go through the similar steps, but are manufactured differently. According to www.fibersource.com, lyocell fiber production entails raw cellulose directly dissolved in an amine oxide solvent, N-methylmorpholine-N-oxide (NMMO). Following filtration, the solution is extruded into an aqueous bath of dilute NMMO and processed into fiber form by means of a solvent spinning operation. Viscose rayon is made by converting purified cellulose to xanthate, dissolving the xanthate in dilute caustic soda and then regenerating the cellulose from the product as it emerges from the spinneret. See, www.fibersource.com.

Lyocell is a fiber that undergoes a change in form during its manufacturing process from wood pulp to fiber. It enters the manufacturing process as cellulose, goes through an intermediate stage and completes the process as a regenerated cellulose product (one derived from plant cellulose). During the course of this process, a complex is formed between the solvent and the cellulose, but no chemical intermediate has been identified. The final outcome of the regeneration therefore appears to be a change in the physical form of the fiber and not a chemical transformation of the molecular structure of the fibers. The final fiber product is therefore the result of an alteration of the physical form of the original wood pulp cellulose source, and not the result of a chemical transformation.

The literature also describes the cellulosic fibers that compose lyocell as being regenerated or manufactured. Kosa's Dictionary of Fiber & Textile Technology define “manufactured fibers” as a “genera of fibers which may be modified or transformed natural polymers.” Regenerated cellulose is defined as “material that begins as cellulose but at some stage in the chemical processing takes the form of another chemical compound, then appears again in its completed stage as cellulose.” See, Dictionary of Fiber & Textile Technology, at 161. The final outcome of the regeneration is a change in the physical form of the fiber and not a chemical transformation of the molecular structure of the fibers. Accordingly, we agree that the manufacture of lyocell does not seem to involve a chemical transformation or modification.

Despite not meeting the tariff definition of an artificial fiber, we note that industry sources such as Fabric link Retailer's Forum describe and list lyocell as a man-made fiber. Lyocell fibers are not directly harvested from nature and are the result of textile chemical engineering. Fairchild's Dictionary of Textiles, published by Fairchild Publications, defines artificial fibers as any class of fibers not found in nature. Included are both regenerated and synthetic fibers. We note that industry sources we reviewed (e.g. www.fibersource.com) consider lyocell to be a cellulosic manufactured fiber and a man-made fiber (www.fabriclink.com). We note that these same industry sources do not view lyocell as a vegetable fiber. The lyocell fibers are therefore not natural, but man-made.

We must therefore consider how we would classify lyocell fibers. It is conceded by you that lyocell is not a synthetic fiber. We will agree that absent a chemical transformation, lyocell cannot be considered to be an artificial fiber within the tariff meaning of the term. In addition, we agree with textile sources that lyocell is not considered a vegetable fiber. We note that when classifying fibers, yarn, or fabric there is no residual or "other" provision. Accordingly, lyocell fibers cannot be classified in accordance with the principles of GRI 1, 2, or 3. Classification would therefore be based on GRI 4, which provides that "(g)oods which cannot be classified in accordance with the above rules shall be classified under the heading appropriate to the goods to which they are most akin."

In determining whether lyocell is most akin to a vegetable or artificial fiber we considered the following:

1. Lyocell is repeatedly defined by textile sources as a man-made and manufactured cellulose fiber.

2. Lyocell enters the manufacturing process as cellulose, goes through an intermediate stage where a complex is formed between the solvent and the cellulose, and completes the process as regenerated cellulose. This results in a modified or transformed natural polymer.

3. The textile industry views the process of manufacturing lyocell as resulting in a man-made or manufactured fiber.

4. Like viscose rayon and cuprammonium rayon, the final product known as lyocell is not one found in nature, although the origin of these fibers is natural.

4. Lyocell is not directly harvested from nature but is the result of textile chemical engineering.

5. The Explanatory Notes to Chapter 54 indicate that a chemical transformation or modification may not be an absolute requirement of an artificial fiber.

6. Note 1 to Chapter 54 indicates that the terms man-made and artificial have the same meaning when used in relation to textile materials.

7. Industry sources do not view lyocell as a vegetable fiber.

We note that although the process used to make lyocell is not exactly the artificial process as described in Note 1, Chapter 54, HTSUS (as there is no chemical transformation), it is our view that based on the above, lyocell fiber is more akin to an artificial than a vegetable fiber. We would therefore classify it under the provision for "artificial fibers" under GRI 4, not because it is an artificial fiber, but because it is most akin to an artificial fiber. The same reasoning would apply when classifying lyocell yarn and fabric, both of which would be classified as of artificial fibers. As a consequence, it follows that a garment made of lyocell would also be classified under the provision for "of man-made fibers."

Accordingly, lyocell is classified as an artificial fiber, and as the subject shirt is composed of woven lyocell fabric, it is considered to be made of artificial fibers. The shirt is correctly classifiable as a women’s shirt, of man-made fibers in subheading 6206.40.3030, HTSUSA.

HOLDING:

The woman's 100% woven lyocell shirt is properly classified in subheading 6206.40.3030, HTSUSA, which provides for "[w]omen's or girls' blouses, shirts and shirt-blouses: [o]f man-made fibers: [o]ther: [o]ther: [o]ther." The merchandise is dutiable at the general column one rate of duty of 27.2% ad valorem and falls within textile quota category 641.

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 Report On Current Import Quotas (Restraint Levels), an internal 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 importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director,
Commercial Rulings Division


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