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HQ H013016




October 1, 2007

CLA-2 OT:RR:CTF:TCM H013016 KSH

CATEGORY: CLASSIFICATION

TARIFF NO.: 6001.92.0030

Brett Ian Harris, Esq.
1200 G Street, N.W. Suite 800
Washington, D.C. 20005

RE: Classification of bonded upholstery fabric

Dear Mr. Harris:

This letter is in response to your letter of October 10, 2006, in which you requested a binding ruling, on behalf of your client Global Textile Alliance, Inc., pertaining to the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of a polyester bonded upholstery fabric. Your request has been forwarded by the National Commodity Specialist Division in New York to this office for a response. Samples were sent for examination.

FACTS:

The fabric at issue is identified as “Mohair.” Laboratory analysis completed by the Office of Laboratory and Scientific Services of the sample, in its condition as imported, indicates that it is a warp knit 3 bar construction bonded knit fabric face to a woven fabric backing. The bonded fabric weighs 393.5 g/m². The knit face fabric is composed wholly of polyester. The woven backing is constructed of 65% polyester and 35% cotton. The front bar movement (1/0, 7/8) and 3rd back bar movement (1/0, 2/3) are in the same direction. The second bar movement (0/7) is in the opposite direction as the first and third. The underlaps of the front guide bar yarn have been cut to create a pile surface. The face fabric has not been brushed. The sample has 15.3 stitches in the vertical direction of the knit face fabric.

ISSUE:

Whether the fabric is classified under Heading 6005, HTSUSA, as a warp knit fabric other than those of headings 6001 to 6004, or under heading 6001, HTSUSA, as a pile fabric.

LAW AND ANALYSIS:

Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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 GRI may then be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN), constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. It is Customs and Border Protection’s (CBP) practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUSA. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

Heading 6005, HTSUSA, provides for: “Warp knit fabrics (including those made on galloon knitting machines), other than those of headings 6001 to 6004.”

Heading 6001, HTSUSA, provides for: “Pile fabrics, including ‘long pile’ fabrics and terry fabrics, knitted or crocheted.”

The EN to heading 6001, HTSUSA, state in relevant part:

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.

Note 1(c) to Chapter 60, HTSUS, states the following:

1. This chapter does not cover:

(c) Knitted or crocheted fabrics, impregnated, coated, covered or laminated, of chapter 59. However, knitted or crocheted pile fabrics, impregnated, coated, covered or laminated, remain classified in heading 6001.

Note 1(c) to Chapter 60, HTSUS, explicitly states that knitted pile fabrics that are laminated remain in heading 6001, HTSUS. See HQ 959013, dated September 16, 1997 and HQ 966062, dated March 11, 2003.

CBP, relying on EN 6001, has previously concluded that the processes for creating pile fabric enumerated in the EN are illustrative, rather than exclusive. See HQ 966062, dated March 11, 2003. The EN specifically states that the methods of production listed are those "mainly used" in the formation of "pile" fabric.

You argue that a fabric may not be classified in heading 6001, HTSUSA, as being of pile construction if it does exhibit a pile appearance upon leaving the loom or knitting machine forming the fabric. In support you cite to Headquarters Ruling Letter (HQ) 960783, dated June 3, 1998, HQ 952921, dated May 7, 1993, HQ 960548, dated September 18, 1997 and New York Ruling Letter (NY) E82482, dated June 16, 1999. You maintain that although the initial construction of the fabrics creates an extended float stitch which extends from the base of one knitted loop to another several rows away, the floats do not protrude from the surface of the fabric during the knitting process. Thus, you argue that the fabrics are precluded from classification in heading 6001, HTSUSA.

The term "pile fabrics" is a term defined by its basic construction. Webster's Third New International Dictionary (1966), defines pile as:

* * * a mass of raised loops or tufts covering all or part of a fabric or carpet that is formed by extra warp or weft yarns during the weaving and that produces a soft even compact furry or velvety surface.

Fairchild's Dictionary of Textiles, defines "pile" as:

* * * Raised loops, cut interlacings of double cloths or tufts (cut loops), and other erect yarns or fibers deliberately produced on cloth, which form all or part of the surface of the fabric. May be warp pile, filling pile or knotted pile, and may be loops produced by weaving an extra set of yarns over wires which are drawn out of the fabric as weaving progresses.

CBP 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, CBP stated:

[I]f 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.

[CBP] 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 [CBP] 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.

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

In Tilton Textile Corp. v. United States, 424 F. Supp. 1053 (1976), the U.S. Customs Court considered the classification of an uncut velveteen fabric. The court noted:

Filling pile fabrics, on the other hand, come off the loom in the weave mill with their filling floats or pile picks uncut. Thus, fabrics with a velveteen or corduroy weave must have their floats cut in the finishing process in order to obtain the pile formation on the fabric surface.  When the pile picks which (as noted) consist of extra threads are cut, the foundation fabric remains undisturbed. Id.

The court went on to state:

Therefore, in light of these standards, unless or until the pile picks or filling floats of an uncut velveteen greige cloth are cut to form the pile on the face of the fabric, it is not a pile fabric within the ambit of the pile fabrics heading and is precluded from classification thereunder as "velveteen." Id.

Thus, the court recognized that cutting the floats after the knitting process creates a pile fabric which can be classified as such.

It is a well-established principle that “the dutiable classification of articles imported must be ascertained by an examination of the imported article itself, in the condition in which it is imported.” Worthington v. Robbins, 139 U.S. 337, 341 (1891); Simod Am. Corp. v United States, 872 F.2d 1572, 1577 (1989) and; The Home Depot, U.S.A., Inc., v. United States, 427 F. Supp. 2d 1278, 1286 (2006), aff’d The Home Depot, U.S.A., Inc., v. United States, 491 F.3d 1334 (2007). Whether the knitting process results in raised loops or floats is irrelevant as, in the condition as imported, the finished fabrics are clearly of pile construction. The fabrics are constructed from two yarns which form the base fabric. A third yarn creates a float stitch which creates the pile but does not impact the structural integrity of the base fabric. The float stitch protrudes from the face of the fabric, albeit horizontally. CBP has previously held that there is no quantitative restriction on how much the loops must protrude. See HQ 952921, cited above. Moreover, unlike the rulings cited, supra, the fabrics are imported in their finished condition and exhibit a pile appearance as a result of cutting the extended float stitch not by brushing or teasling uncut loops, or any similar process carried out after knitting. Rather, the fabrics at issue are cut pile that is cut in a separate finishing operation. See Fairchild's Dictionary of Textiles. Cut pile fabrics differ from uncut pile fabrics, which were the subject of the rulings you have cited. In these rulings the loops were not cut and present a different surface appearance. Id. The cited rulings support the view that brushing of a fabric that does not exhibit a pile construction at the time it leaves the knitting machine does not create a pile surface. Accordingly, the subject fabrics are classified in heading 6001, HTSUSA.

HOLDING:

Based on the foregoing, the fabric is classified under subheading 6001.92.0030, HTSUSA, which provides for “Pile fabrics, including ‘long pile’ fabrics and terry fabrics, knitted or crocheted: Other: Of man-made fibers, Other: Velour.” The applicable general column one rate of duty is 17.2 percent ad valorem. The applicable textile category code is 224.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the world wide web at www.usitc.gov.

Quota/visa requirements are no longer applicable for merchandise which is the product of 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 this 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.

  A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.

Sincerely,

Gail A. Hamill, Chief
Tariff Classification and Marking Branch

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