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HQ 965419




February 8, 2002

CLA-2 RR:CR:TE 965419 SS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6113.00.90

Elizabeth Durant, Trade Programs Executive Director Office of Field Operations
U. S. Customs Service
1300 Pennsylvania Avenue, N.W.
Washington, DC 20229

RE: Internal Advice; Wal-Mart Camouflage Hunting Apparel Program; Classification of Garments Made Up of Certain Laminated Knitted Fabric; Heading 6113, HTSUSA; Laminated Fabric of Heading 5903; Other Knitted Fabric of Heading 6002, HTSUSA; Not Pile Fabric of Heading 6001, HTSUSA

Dear Ms. Durant:

This ruling is in response to a memorandum forwarded to this office dated January 25, 2002, submitted to you by Sandler, Travis & Rosenberg, P.A. on behalf of their client Wal-Mart Stores Inc. (“Wal-Mart”). In essence, Wal-Mart claims that they are importing garments made of laminated knitted non-pile fabric and that certain Customs Laboratories are not following the principles set forth in Headquarters Ruling Letter (HQ) 962050, dated September 18, 1997, and HQ 960548, dated September 18, 1997. Wal-Mart claims that garments made of identical fabrics are being classified differently based on the laboratory that performs the analysis. This office has decided to treat the matter as an Internal Advice regarding the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of garments made of laminated knit fabric.

We have reviewed the memorandum forwarded to this office and a submission made directly to this office by Counsel for Wal-Mart dated February 4, 2002. Several members of this office and Laboratories and Scientific Services met with counsel and representatives of Wal-Mart and its various suppliers on February 5, 2002.

FACTS:

In 2001, Wal-Mart entered the garments at issue through the ports of Seattle, Tacoma, Norfolk, Los Angeles and Dallas. The garments are made of a knitted fabric which has been brushed on one suface to achieve a “pile-like” appearance. Wal-Mart claims the garments are made of a knitted fabric which is not a pile fabric. The garments were entered under heading 6113, HTSUSA. Heading 6113, HTSUSA, covers, among other things, garments made up of laminated knitted fabrics which are not pile fabrics.

However, the Customs Laboratory in San Francisco examined samples and found the fabric to be a pile fabric. The Customs Laboratory in Savannah also examined samples and found the fabric to be a pile fabric. The Laboratory reports indicate that the fabrics had been engineered to allow for the brushing of the floats to create a “pile-like” surface. Thus, the determinations that the fabrics were of pile construction were based on the concept that the fabrics were “engineered to be pile.” The reports indicate that no determinations were made as to whether or not raised loops or floats were created at the time of knitting.

Wal-Mart claims that the Chicago Customs Laboratory examined garments made of identical fabric and found that the fabric was not a pile fabric. A review of that laboratory report indicates that the laboratory believed the fabric to be of pile construction but applied the analysis set forth in HQ 960250 and HQ 960548 and concluded the fabric was not of pile construction.

ISSUE:

Whether the garments are classified under Heading 6113, HTSUSA, as garments made up of knitted or crocheted fabrics of Headings 5903, 5906, or 5907, HTSUSA?

LAW AND ANALYSIS:

Heading 6113, HTSUSA, provides for garments made up of knitted or crocheted fabrics of headings 5903, 5906 or 5907, HTSUSA. Headings 5903, 5906 and 5907, HTSUSA, cover a variety of impregnated, coated, covered or laminated fabrics. However, knitted pile fabrics which are impregnated, coated, covered or laminated are not classified within any of those headings.

Legal Note 1 to Chapter 59 defines “textile fabrics” for the purposes of classification in Chapter 59 as including knitted fabrics of heading 6002, HTSUSA, but excludes knitted pile fabrics of heading 6001, HTSUSA. Legal Note 1(c) to Chapter 60 states that Chapter 60 does not cover knitted fabrics impregnated, coated, covered or laminated of Chapter 59. However, Legal Note 1(c) to Chapter 60 also clarifies that knitted pile fabrics of heading 6001, HTSUSA, that are impregnated, coated, covered or laminated remain classified in heading 6001, HTSUSA. Thus, a knitted pile fabric laminated with plastic would remain classified under heading 6001, HTSUSA, while a knitted non-pile fabric laminated with plastic would be classified under heading 5903, HTSUSA, as a textile fabric laminated with plastic. Accordingly, the classification of the garments is dependent on whether or not the fabric is determined to be pile or non-pile knitted fabric.

Customs has addressed the issue of classification of knitted pile fabrics in at least ten rulings. See HQ 951374, dated October 30, 1992; HQ 952803, dated January 28, 1993; HQ 952804, dated January 28, 1993; HQ 953942, dated May 7, 1993 (revoking HQ 952803); HQ 953941, dated May 7, 1993 (revoking HQ 952804); HQ 952921, dated May 7, 1993; HQ 952924, dated May 7, 1993; HQ 960250, dated September 18, 1997; HQ 960548, dated September 18, 1997; HQ 959801, dated November 7, 1997; and HQ 960783, dated June 3, 1998. In the earlier rulings Customs stated:

If during the weaving or knitting of a fabric, yarns are caused to project from the surface(s) (i.e., the base material) of that fabric creating a “pile” appearance, that fabric will be considered a pile fabric for the purposes of the HTSUSA, even if those yarns are subsequently subjected to a brushing process. However, if fabric is woven or knit without projecting yarns which create a “pile” surface or surfaces, and that “pile” appearance is later produced by a brushing, teasling, or similar process, then the fabric is not considered to be a pile fabric for the purposes of the HTSUSA.

See HQ 951374, HQ 952803, HQ 952804, HQ 953942, HQ 953941, HQ 952921 and HQ 952924 cited above.

It appears that the laboratories involved in this matter felt that the construction of the fabric mandated a finding of pile fabric. In the laboratories’ opinion, this fabric was engineered to be a pile fabric based on the arrangement of yarns and guide bar patterns. However, in at least four of the rulings cited above, Customs has addressed the issue of “engineered to be pile”:

* * * The Customs Laboratory report indicates that the subject merchandise is “engineered to be” pile. 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 it will examine the process involved in the production of the fabric and the appearance of the 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 yarns 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 fabrics 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.

In the case of the subject merchandise at the time of the knitting process there are no loops or floats which protrude in any way from the surface of the fabrics. The “pile-like” appearance is a result of the brushing, that is, subsequent processing. 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, precludes the subject merchandise from classification as pile.

See HQ 960548, HQ 960250, HQ 959801 and HQ 960783 cited above.

Pursuant to Customs Regulation 177.9(a), the Headquarters ruling letters cited above represent the official position of the Customs Service with respect to brushed knitted fabrics that are “engineered to be pile” and is binding on all Customs Service personnel until modified or revoked. 19 C.F.R. 177.9. Accordingly, the Customs Laboratories should have uniformly applied the analysis set forth in the cited Headquarters rulings.

Based upon an examination of samples reviewed by the laboratories, we find that there are no loops or floats which protrude in any way from the surface of the instant fabric at the time of the knitting process. The “pile-like” appearance is a result of the brushing. Applying the rationale set forth in the prior rulings, although we do not disagree with our Laboratory’s findings that as a technical matter this fabric is engineered to be pile, the fact that at the time of knitting this merchandise does not exhibit any raised loops or floats, precludes the fabric from classification as a pile fabric of heading 6001, HTSUSA. Thus, the fabric is classifiable as a non-pile knitted fabric of heading 6002, HTSUSA, and the laminated fabric is classifiable under heading 5903, HTSUSA. Accordingly, the garments are classifiable under heading 6113, HTSUSA.

HOLDING:

Based on the foregoing, the garments are classifiable under subheading 6113.00.90, HTSUSA, which is the provision for garments made up of knitted or crocheted fabrics of heading 5903, 5906 or 5907. The applicable rate of duty in 2001 was 7.2 percent ad valorem. The applicable textile category code is 634, 647 or 659 depending on the type of article (jacket, overalls, etc.).

In order to maintain uniformity, we ask that a copy of this letter be supplied to each of the ports involved in this matter. Also, by copy of this letter, we request that Laboratories and Scientific Services provide a copy of this letter to all Customs Laboratories.

Sincerely,

John Durant, Director
Commercial Rulings Division


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