HQ 960783

June 3, 1998

CLA-2 RR:CR:TE 960783 jb

CATEGORY: Classification

TARIFF NO.: 5903.10.2090

Port Director

U.S. Customs Service

300 S. Ferry Street

Terminal Island, CA 90731

RE: Decision on Application for Further Review of Protest No.

2704-97-101180; textile fabrics laminated to PVC sheeting

Dear Sir:

This is a decision on application for further review of a

protest timely filed by Grunfeld, Desiderio, Lebowitz & Silverman

LLP, on behalf of LG Chemical America, Inc., on March 28, 1997,

against your decision regarding the classification of certain

textile fabrics laminated to PVC sheeting. Customs issued a

notice to redeliver on December 31, 1996. Samples were

submitted to this office for examination.

FACTS:

The subject merchandise consists of a two layer material

referred to as \"embossed vinyl with a textile backing\". The

Protestant states that the merchandise consists of:

a cellular polyvinyl chloride (PVC) sheeting with a 100

percent nylon tricot knit backing\.... The PVC sheeting

actually consists of three distinct layers: an inner PVC

foam layer expanded (and given cellular characteristics) by

use of a blowing agent, an outer PVC skin which is printed

and embossed to give the appearance of leather, and the

textile backing. The PVC layers together weigh

approximately 451 g/yd, comprising 78.2 % of the total,

while the fabric component weighs approximately 126 g/yd,

comprising 21.8 % of the total.

Additionally, the Protestant claims that the subject merchandise

is used solely for the construction of imitation leather golf

bags.

Examination by the Customs laboratory reveals that the

merchandise is a knit nylon fabric having an application of

polyvinyl chloride, and that the knit fabric has the

\"characteristics of warp knit raised loop pile construction\".

At the time of entry, Customs classified the merchandise in

heading 6001, Harmonized Tariff Schedule of the United States

(HTSUS), as looped pile fabrics of man-made fibers. The

Protestant disagrees with this classification determination and

advocates classification of the subject merchandise in heading

3921, HTSUS, (or in the alternative, heading 5903, HTSUS) for the

following reasons:

1\. The textile does not have the construction of \"pile

fabric\"; that is, the raised effect of the fabric is

not achieved by the inclusion of additional yarns

during the knitting process, but is a result of

\"brushing\" after the knitting process;

2\. The fabric serves no other purpose other than as

reinforcement for the PVC layer.

ISSUE:

What is the appropriate classification for the subject

merchandise?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff

Schedule of the United States Annotated (HTSUSA) is in accordance

with the General Rules of Interpretation (GRI). GRI 1 provides

that classification shall be determined according to the rules of

the headings and any relative section or chapter notes, taken in

order. Merchandise that cannot be classified in accordance with

GRI 1 is to be classified in accordance with subsequent GRI.

I. Is this merchandise considered a \"pile\"?

Heading 6001, HTSUS, provides for pile fabrics, including

\"long pile\" fabrics and terry

fabrics, knitted or crocheted. The EN to that heading state:

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

a 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 characterized 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.

The Protestant is correct in his assertion that the subject

merchandise does not meet the terms of methods 1-3. However,

there seems to be some question as to whether the fourth method

described by the EN, that is, textile yarns to form loops, is an

appropriate description of the knitting method for the subject

merchandise. There appear to be two schools of thought with

reference to the interpretation of the basic construction of this

merchandise. The Customs Laboratory report indicates that the

subject merchandise is of \"warp knit raised loop pile\"

construction. 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 Customs will examine the process involved in the

production of the fabric and the appearance of that 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 yarn 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 fabric 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.

The subject fabric was examined both prior to and subsequent

to the napping process. The \"pile-like appearance\" of this

merchandise is a result of a subsequent brushing process and not

its initial construction. 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, but only

after subsequent brushing, the subject merchandise is precluded

from classification as pile.

II\. Is the textile backing purely for reinforcement purposes?

In making an accurate classification determination with

respect to the subject merchandise, pursuant to GRI 1, all

relevant section and chapter notes must be applied. The EN to

chapter 39, HTSUS, under Plastics and textile combinations,

beginning at page 597 state, among other things:

Wall or ceiling coverings which comply with Note 9 to this

Chapter are classified in heading 39.18. Otherwise, the

classification of plastics and textile combinations is

essentially governed by Note 1(h) to Section XI, Note 3 to

Chapter 56 and Note 2 to Chapter 59. The following products

are also covered by this Chapter:

\* \* \*

\(d\) Plates, sheets and strip of cellular plastics combined

with textile fabrics, felt or nonwovens, where the

textile is present merely for reinforcing purposes.

In this respect, unfigured, unbleached, bleached or

uniformly dyed textile fabrics, when applied to one

face only of these plates, sheets or strip, are

regarded as serving merely for reinforcing purposes.

Figured, printed or more elaborately worked textiles

(e.g., by raising) and special products, such as pile

fabrics, tulle and lace and textile products of heading

58.11, are regarded as having a function beyond that of

mere reinforcement.

Note 1(h) to section XI states that this section does not

cover:

Woven, knitted or crocheted fabrics, felt or nonwovens,

impregnated, coated, covered or laminated with plastics, or

articles thereof, of chapter 39.

Legal Note 2(a)(5) to chapter 59, HTSUS, states that heading

5903, HTSUS, applies to textile fabrics, impregnated, coated,

covered or laminated with plastics, whatever the weight per

square meter and whatever the nature of the plastic material

(compact or cellular), other than:

Plates, sheets or strip of cellular plastics, combined with

textile fabric, where the textile fabric is present merely

for reinforcing purposes (chapter 39)

Chapter 60, HTSUS, provides for knitted or crocheted

fabrics. Note 1(c) to that chapter states that this chapter does

not cover:

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.

In classifying this merchandise a comprehensive analysis

requires more than a simplistic approach. In this instance we

clearly have a plastic which has been combined with a textile

fabric. It is clear that the underlying understanding of these

notes, when read conjunctively, is that if a textile acts merely

for reinforcing purposes when combined with cellular plastic, the

good is NOT to be precluded from classification in chapter 39.

Clearly stated, the presumption in the EN to chapter 39 is that

pile fabrics are regarded as having a function which is beyond

mere reinforcement. If the textile backing acts as more than

\"mere enforcement\", classification in chapter 39 is not

warranted. The Protestant makes reference to a number of rulings

which, in Protestant\'s opinion, provide support for a finding

that the textile in the subject merchandise is present only for

reinforcement of the plastic. We do not agree for the reasons

set forth below.

The Protestant refers to HQ 086670, dated March 26, 1990,

which classified certain merchandise composed of a top layer of

compact plastic, a middle layer of foamed plastic and a bottom

layer of textile materials, and HQ 083288, dated March 26, 1989,

which classified similar merchandise. In both rulings the

merchandise was classified in heading 3921, HTSUS. In the

opinion of the Protestant the submitted merchandise is nearly

identical to the merchandise addressed in HQ 086670 and HQ 083288

and thus should be classified accordingly. The analysis in

neither one of those rulings provides any indication of

comparable ratios with respect to the plastics portion and the

textile backing. Additionally, although the rulings do describe

the textile backing as being \"very thin\", no information is given

with respect to how this merchandise will be used. Given these

variables we cannot say with the same certainty as the Protestant

that the subject merchandise and the merchandise in the rulings

referenced above are identical in nature.

In HQ 081489, dated March 27, 1989, the merchandise at issue

consisted of different samples of combination plastic/textile

materials. The facts indicated that the merchandise was used

commonly in automobile upholstery as well as other applications,

such as luggage and handbags. All of the samples in HQ 081489,

except for sample 5, have a textile backing which serve only to

support the plastic. In the applications noted in the ruling,

particularly for the automobile upholstery, the textile backing

would not be exposed; as such, the textile does not provide a

tactile or visual effect. As such, there is no indication either

from the physical description of the merchandise, nor its

intended use, that the textile will serve any purpose other than

reinforcement.

In HQ 085100, dated September 11, 1989, a boys\' imitation

leather jacket featuring a woven man-made fiber lining and an

outer shell consisting of a nontransparent polyvinyl chloride

type cellular plastics coating or covering which completely

obscured the underlying warp knit pile fabric was classified in

heading 3921. In this case no function was attributed to the

textile backing other than reinforcement. The plastics portion

was considered more substantial and critical to the garment than

the textile and thus classification devolved to heading 3921.

Protestant accurately notes several glove rulings (HQ

953768, dated July 23, 1993, HQ 088539, dated June 6, 1991)

wherein a determination was made that the textile backing was

present for more than mere reinforcement purposes. Additionally,

reference is made to NY A81621, dated April 16, 1996, where in

discussing a warp knit polyester man-made fiber fabric that had

been brushed, dyed and printed to simulate natural leather, a

similar conclusion was reached. Protestant tries to discount

these rulings by stating that this is not the case with the

subject merchandise. We however disagree. In the case of the

subject merchandise we are not convinced that the textile backing

will serve only to reinforce the plastic. As a matter of fact,

in the application noted by the Protestant, that is, a golf bag,

we believe that the textile will serve an explicit purpose- it

will provide a soft interior lining for the golf bags into which

the clubs will be positioned. Much of the golf clubs sold in

today\'s market consist of graphite shafted clubs which are prone

to scratching. Many golf bags are thus designed with a soft

textile interior in order to reduce some of the abrasion which

could be caused by the absence of such a liner. In addition to

this tactile motivation, the textile interiors are tastefully

coordinated to match the exterior color, thus providing a visual

motivation for the purchase of a particular golf bag.

As such , it is our determination that in the case of this

particular merchandise, the fabric has a role which is beyond

\"mere reinforcement\".

We thus come to two conclusions: the subject merchandise is

not pile (it lacks the construction thereof), and the textile

interior has a purpose which is beyond mere reinforcement. In so

stating, we must devolve to heading 5903, HTSUS.

HOLDING:

The subject merchandise is properly classified in subheading

5903.10.2090, which provides for textile fabrics impregnated,

coated, covered or laminated with plastics, other than those of

heading 5902: with polyvinyl chloride: of man-made fibers: other:

over 70 percent by weight of rubber or plastics: other. The

applicable rate of duty is 2.5 percent ad valorem.

The protest should be granted in full and a copy of this

ruling should be appended to the CF 19 Notice of Action to

satisfy the notice requirement of section 174.30(a) Customs

Regulations.

In accordance with Section 3(A)(11)(b) of Customs Directive

099 3550-065, dated August 4, 1993, Subject: Revised Protest

Directive, this decision should be mailed by your office to the

Protestant no later than 60 days from the date of this letter.

Any reliquidation of the entry in accordance with the decision

must be accomplished prior to mailing of the decision. Sixty

days

from the date of the decision the Office of Regulations and

Rulings will take steps to make the decision available to Customs

personnel via the Customs Rulings Module in ACS and the public

via the Diskette Subscription Service, Freedom of Information Act

and other public access channels.

Sincerely,

John Durant, Director

Commercial Rulings Division