HQ 959801

November 7, 1997

CLA-2 RR:TC:TE 959801 jb

CATEGORY: Classification

TARIFF NO.: 5903.90.2500

Gail Cumins, Esq.

Sharretts, Paley, Carter & Blauvelt, P.C

Sixty Seven Broad Street

New York, NY 10004

RE: Classification of fabrics laminated with plastic

Dear Ms. Cumins:

This is in response to your letter of November 11, 1996,

supplementing a letter dated February 28, 1996, submitted by

Barthco International on behalf of your client, W.L Gore &

Associates, Inc., requesting a binding ruling for certain fabrics

laminated with plastic. Samples of the fabrics were submitted to

this office for examination. We regret the delay in our

response.

FACTS:

The subject merchandise consists of five samples, referenced

style numbers Mflock fabric, Stealth fabric, AQ955 fabric, Quiet

Cloth fabric, and T43001 fabric, all of which, except for the

Mflock fabric, are made up of brushed 100 percent polyester knit

fabrics which have been laminated with a polytetrafluoroethylene

(PTFE) film.

The subject merchandise was examined by the Customs

laboratory which, in its report, stated that all of the fabrics,

except for the Mflock fabric, consisted of a warp knit pile

construction. Verbal consultations with the Laboratory also

reveal that all of the fabrics (except the Mflock) are knit base

fabrics which have a \"loop-raised pile fabric construction\" and

that this merchandise is \"engineered to be pile\". There seems to

be no disagreement with respect to the classification of the

Mflock fabric, that is, we agree that this fabric is a flocked

fabric classifiable in heading 5907, HTSUS. As such, this letter

will not specifically address this fabric in the analysis.

In your opinion the proper classification for this

merchandise is in heading 5903, Harmonized Tariff Schedule of the

United States (HTSUS), as textile fabrics impregnated, coated,

covered or laminated with plastics, other than those of heading

5902\. In support of this classification you make reference to:

1\. The Explanatory Notes to the Harmonized Commodity

Description and Coding System (EN) to heading 6001,

HTSUS;

2\. The submitted samples, which you state are made of a warp

knit fabric that, after knitting, is simply

surface sanded with an abrasive roller to simulate a pile

construction before being laminated.

In a subsequent meeting held at this office you also made

reference to HQ 951111, dated October 5, 1992, as further support

for your claim that the construction of the subject merchandise

does not warrant classification as pile. We bring to your

attention that what you refer to as \"HQ\" 951111 is actually

\"Internal Memorandum\" 951111.

ISSUE:

Whether the subject merchandise is classified in heading

6001, HTSUS, which provides for pile fabrics, including \"long

pile\" fabrics and terry fabrics, knitted or crocheted, or heading

5903, HTSUS, which provides for, textile fabrics impregnated,

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

heading 5902?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff

Schedule of the United States Annotated (HTSUSA) is governed by

the General Rules of Interpretation (GRI\'s). GRI 1 requires that

classification be determined according to the terms of the

headings and any relative section or chapter notes, taken in

order. Where goods cannot be classified solely on the basis of

GRI 1, the remaining GRI\'s will be applied, in the order of their

appearance.

In determining the proper classification determination for

this merchandise we must analyze the construction of the fabric,

that is, the structure of the fabric at the time of the knitting

process. Heading 6001, HTSUS, provides for pile fabrics,

including \"long pile\" fabrics and terry fabrics, knitted or

crocheted. The EN to heading 6001, HTSUS, state that the

products of this heading are obtained by knitting. The methods

of production mainly used to knit these products are as follows:

\(1\) 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.

You are correct in your assertion that the subject

merchandise does not meet the terms of methods 1-3 for the

following reasons:

\(1\) the knitting process does not involve an \"additional

yarn\";

\(2\) the knitting process does not involve knitting the

fabrics \"face to face\";

\(3\) the knitting process does not involve the insertion of a

carded sliver.

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 \"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 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.

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 fabric. 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.

Heading 5903 provides for textile fabrics impregnated,

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

heading 5902. This provision, accurately describes the submitted

merchandise.

We address one final issue. In a meeting held at this

office, you made reference to Internal Memorandum 951111 to

substantiate your position that the subject merchandise is not

classifiable as pile. As we have already noted, \"951111\" is not

per se a Headquarters Ruling (HQ), but an Internal Memorandum.

As such, to the extent that a relevant portion(s) of that

Internal Memorandum is referenced because it is cited in an

actual Headquarters Ruling, only that portion(s) has any

precedential value as far as the public is concerned. The entire

document however, cannot and should not be treated as a

Headquarters Ruling.

HOLDING:

The subject merchandise, referenced style numbers Stealth

fabric, AQ955, Quiet Cloth fabric and T43001, are properly

classified in subheading 5903.90.2500, HTSUSA, which provides for

textile fabrics impregnated, coated, covered or laminated with

plastics, other than those of heading 5902: other: of man-made

fibers: other: other. The applicable rate of duty is 8.2 percent

ad valorem and the quota category is 229.

The Mflock fabric is properly classified in subheading

5907.00.1500, HTSUSA, which provides for textile fabrics

otherwise impregnated, coated or covered; painted canvas being

theatrical scenery, studio back-cloths or the like: laminated

fabrics; fabrics specified in note 9 to sectionXI: of man-made

fibers: other. The applicable rate of duty is 13.6 percent ad

valorem and the quota category is 229.

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 negotiations and

changes, we suggest that your client check, close to the time of

shipment, the Status Report On Current Import Quotas (Restraint

Levels), an 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 importing the merchandise to

determine the current status of any import restraints or

requirements.

Sincerely,

John Durant, Director

Commercial Rulings Division