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HQ H012351





September 26, 2007

CLA-2 OT:RR:CTF:TCM H012351 BAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6001.22.0000

Randy Rucker, Esq.
Drinker Biddle Gardner Carton
191 N. Wacker Drive
Suite 3700
Chicago, Illinois 60606-1698

RE: Classification of Laminated Fabric Products

Dear Mr. Rucker:

This is in response to your request dated June 9, 2006, and supplemental submission, dated September 19, 2007, on behalf of Avery Dennison Corporation, seeking a binding ruling concerning the classification of certain brushed laminate and lock laminate products under the Harmonized Tariff Schedule of the United States (HTSUS). Your letter and sample were forwarded to this office for our response. We also considered information presented and sample base fabrics provided at our meeting on September 12, 2007.

FACTS:

The merchandise at issue is two nylon warp knit fabrics which are laminated on one side to polyethylene plastic film decorated with a printed motif. The merchandise was sent to the Bureau of Customs and Border Protection (CBP) laboratory for review.

Laboratory analysis of the sample, designated as “Brushed Laminate”, indicates that it is a two bar warp knit fabric which is composed of 100% nylon and has been coated, covered or laminated on one side with polyethylene plastic. The lapping movement of the front bar can be expressed as 1/0, 3/4 while the lapping movement of the back bar can be expressed as 1/0, 1/2. The lapping movement of the two bars are in unison creating an unstable construction with inclined loops similar to those of a single guide bar structure. The underlaps of the front guide bar project upward from the surface of the fabric creating loose floats which appear as loops standing up from the fabric. The laboratory states that these floats have not been brushed or cut and that their projection is the result of the relative tension applied to the yarn as the fabric is being knit. Weighing 63.4 g/m², the product will be imported in 148 millimeter to 190 millimeter widths. The warp knit fabric has been laminated to a printed polyethylene film. The plastic film has been printed with an array of animals.

Laboratory analysis of the second sample, designated as “Lock Laminate”, indicates that it is a warp knit fabric of looped pile construction that is composed of 100% nylon. It has also been laminated to a sheet of polyethylene plastic. The outer surface of the plastic film has been printed with whimsical stylized depictions of bears, flowers, houses, clouds and other assorted images. Weighing 56.6 g/m², the product will be imported in widths ranging between 148 millimeters and 190 millimeters. The laboratory indicates that the plastic film weighs approximately 19 g/m² while the nylon knit fabric weighs approximately 36.8 g/m². Although the loops do not project up at a 90 degree angle, all of the loops that form the pile lay above the knit stitches of the base fabric and are formed at such an angle as to project above the base fabric to some degree. You state that both samples will be used in the production of diapers and will form part of a hook and loop fastening system.

ISSUE:

Whether the textile fabrics are properly classified in heading 5903, HTSUSA, which provides for textile fabrics impregnated, coated, covered or laminated with plastics, or in heading 6001, HTSUSA, which provides for pile fabrics, including “long pile” fabrics and terry fabric, knitted or crocheted?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule 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 GRIs may then be applied.

When interpreting and implementing the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, while neither legally binding nor dispositive, provide a guiding commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. Customs and Border Protection (CBP) believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The principle issue to be addressed by CBP in the classification of this fabric is whether the fabric is "pile." The Explanatory Notes and prior CBP ruling letters assist in resolving this question. Explanatory Note 60.01 provides, in part:

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 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 characterised 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.

CBP, relying on EN 60.01, has previously concluded that the processes enumerated in the EN are illustrative, rather than exclusive. The EN specifically states that the methods of production listed are those "mainly used" in the formation of "pile" fabric.

The determinative factor with regards to whether fabric is considered to be "pile" fabric is whether the process utilized results in the production of a fabric with raised loops, not whether the fabric-making process is listed in the Explanatory Note. As stated in HQ 951374 (Oct. 30, 1992), "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." The laminate fabrics subject to this classification ruling comport with the requirement that yarns project from the surface of the fabric as the result of the fabric-making process resulting in the production of a "pile" fabric. See HQ 966062 (March 11, 2003) and see generally HQ 953303 (April 9, 1993); and HQ 953942 (May 7, 1993).

Note 1(c), Chapter 60, provides, with a single exception, that knitted or crocheted fabrics that are impregnated, coated, covered or laminated are classified in Chapter 59, HTSUSA. The exception set forth in Note 1(c), Chapter 60, states that knitted or crocheted pile fabrics that are impregnated, coated, covered or laminated remain classified in heading 6001, HTSUSA. The two nylon warp knit fabrics at issue fall within the exception to Note 1(c), Chapter 60, as they are both a knit pile fabric and laminated. The fabrics are, therefore, classified in heading 6001, HTSUSA.

Continuing the classification of the laminated warp knit pile fabrics, the fabrics are classified in subheading 6001.22.0000, HTSUSA. Subheading 6001.22.0000, HTSUSA, provides for the classification of: “Pile fabrics, including ‘long pile’ fabrics and terry fabrics, knitted or crocheted: Looped pile fabrics: Of man-made fibers.”

Counsel for the importer suggests that the fabric is properly classified in heading 5903, HTSUSA. Heading 5903, HTSUSA, provides for the classification of "[t]extile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902." The phrase "textile fabrics" in heading 5903, HTSUSA, is defined in Note 1, Chapter 59. Note 1, Chapter 59, states that "[e]xcept where the context otherwise requires, for the purposes of this chapter the expression ‘textile fabrics’ applies only to the woven fabrics of chapters 50 to 55 and headings 5803 and 5806, the braids and ornamental trimmings in the piece of heading 5808 and the knitted or crocheted fabrics of headings 6002 to 6006." Since the two nylon warp knit fabrics are classified in heading 6001, HTSUSA, the fabrics are not "textile fabrics" for the purposes of Chapter 59 and cannot be classified in heading 5903, HTSUSA.

HOLDING:

      The “Brushed Laminate” and “Locked Laminate,” warp knit pile fabrics are classified in subheading 6001.22.0000, HTSUSA. The general column one rate of duty is 17.2 percent ad valorem. Merchandise classifiable in subheading 6002.22.0000, HTSUSA, falls within textile category 224.

With the exception of certain products of China, quota/visa requirements are no longer applicable for merchandise, which is the product World Trade Organization (WTO) member countries. The textile category number above applies to merchandise produced in non- WTO member-countries. Quota and visa requirements are the result of international agreements that are subject to frequent renegotiations and changes. To obtain the most current information on quota and visa requirements applicable to the merchandise, we suggest you check, close to the time of shipment, the “Textile Status Report for Absolute Quotas” which is available on our web site at www.cbp.gov. For current information regarding possible textile safeguard actions on goods from China and related issues we refer you to the web site of the Office of Textiles and Apparel of the Department of Commerce at otexa.ita. doc.gov.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.

Sincerely,


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