CLA-2 RR:CR:TE 961082 jb

Paul G. Giguere, Esq.
Sandler, Travis & Rosenberg, P.A.
1300 Pennsylvania Ave., N.W., Suite 400
Washington, D.C. 20004

RE: Classification of woven fabrics composed of filament polyester warp and a filling composed of filament spandex and polyester staple; buffed

Dear Mr. Giguere:

This is in response to your letter of December 3, 1997, on behalf of your client, the Korea Textile Trade Association, requesting a classification determination under the Harmonized Tariff Schedule of the United States (HTSUS), for certain man-made woven fabrics. Samples were submitted to this office for examination.

FACTS:

The subject merchandise consists of woven fabric made from man-made synthetic fibers- polyester filament. Polyester is extruded into filament yarn and the fabric is woven from the polyester filament yarn and polyester filament combined with spandex yarn. Subsequent to weaving, the fabric is further processed by way of what is referred to as "buffing", "sanding", "beating", or "napping". This processing causes the filament yarn in the filling to cut, break, or otherwise separate on the surface of the fabric. You assert that although the further processing of this fabric cuts, breaks, or otherwise separates some of the filament yarns, this does not change the character of the fabric. As such, the fabric remains woven fabric of synthetic filament yarn, albeit that some filament is cut, broken, or otherwise separated. In your opinion the fibers cut, broken or otherwise separated in the surface treatment of the fabric do not constitute staple fiber, as concluded by Customs.

Three samples were submitted to this office. When examined by the Customs laboratory, the following results were obtained:

I. #4 Seong An 961082 greige: ... has a satin weave construction, weighs 250.2 grams per square meter, and has the characteristics of an unbleached fabric. The fabric has a napped portion and an unnapped portion on one surface. The warp yarn is composed wholly of polyester filaments. The weft yarn is composed of polyester fibers wrapped around an elastomeric core (filament). The sample has the following compositon by weight:

Unnapped Portion Percent

Polyester textured filaments 51 Polyester filaments (characteristics of non-textured) 43 Elastomeric core 6

Napped Portion Percent

Polyester warp (wholly of filaments) 51 Polyester weft (wholly of staples less than 2 inches long) 43 Elastomeric core 6

II. #5 Seong An 961082 blue: ... has a satin weave construction, weighs 269.3 grams per square meter, and has the characteristics of containing yarns of different colors. The warp yarn is composed wholly of polyester filaments. The weft yarn is composed of polyester filaments wrapped around an elastomeric core (filament). The sample has the following compositon by weight:

Polyester "textured" filaments 49 Polyester filaments (characteristics of non-textured) 48 Elastomeric core 3

III. #6 Seong An 961082 orange: ... has a satin weave construction, weighs 257.9 grams per square meter, and has the characteristics of containing yarns of different colors. The fabric has been napped on one surface. The warp yarn is composed wholly of polyester filaments. The weft yarn is composed of polyester fibers wrapped around an elastomeric core (filament). The sample has the following compositon by weight:

Polyester filaments 49 Polyester fibers (wholly of staples less than 2 inches long) 48 Elastomeric core 3

Although no dispute exists between Customs and the importer regarding classification of this merchandise at the heading level, that is, that the merchandise consists of woven fabric of "synthetic filament yarn", classifiable in heading 5407, HTSUS, there remains some question with respect to the appropriate subheading level for this merchandise. It is the opinion of Customs that the cutting, breaking, or otherwise separating of the filaments during the napping process converts the yarn into a staple fiber yarn. You claim however, that the cutting, breaking, or otherwise separating of filaments in the napping process does not convert the yarn into a staple fiber yarn, and that the merchandise should be classified at a subheading providing for 85 percent or more by weight of textured polyester filaments. In support of your claim you make reference to:

1. the Explanatory Notes to the Harmonized Commodity Description and Coding System (EN) to chapter 55;

2. New York Ruling Letter (NY) B86748, dated July 8, 1997, wherein Customs classified two fabrics virtually identical in composition to the subject merchandise, at a subheading level for other woven fabrics containing 85 percent or more by weight of polyester filaments. ISSUE:

Whether a continuous fiber yarn (i.e. filament yarn) is considered "continuous" when subsequent processing (after weaving and prior to importation into the United States), as in this case "napping", cuts, breaks, or otherwise separates the fibers into short fibers (i.e., staple fibers)?

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.

Section XI, Note 2(A) states:

Goods classifiable in chapters 50 to 55 or in heading 5809 or 5902 and of a mixture of two or more textile materials are to be classified as if consisting wholly of that one textile material which predominates by weight over each other single textile material.

* * *

The sample designated as "#4 Seong An", in its unnapped condition, is composed of 94 percent warp and weft (polyester filament) and 6 percent elastomeric core, or in its napped condition, 51 percent polyester warp (wholly of filaments), 43 percent polyester weft (wholly of staples less than 2 inches long) and 6 percent elastomeric core. In either case, the textile material which predominates by weight is the polyester filament yarn. In the case of "#5 Seong An", the sample is composed of 97 percent polyester filaments and 3 percent elastomeric core; and in the case of "#6 Seong An", the napped sample is composed of 49 percent polyester warp (wholly of filaments), 48 percent polyester weft (wholly of staples less than 2 inches long) and 3 percent elastomeric core. Similarly, in the case of both these samples, the textile material which predominates by weight is polyester filament yarn. As such, there is no disagreement that the proper classification for the subject merchandise is in heading 5407, HTSUS, which provides for woven fabrics of synthetic filament yarn.

However, a determination must be made with respect to the appropriate subheading for this merchandise. It is a basis tenet of Customs law that classification of merchandise is based on its condition as imported. As such, a discussion of the proper subheading for this merchandise requires an examination of the subject merchandise in its napped condition. Simply stated, the issue is whether the changes to the filling yarns, as a result of the napping process, results in fibers characterized as staple fibers, irrespective of the fact that at the time of the weaving process of this fabric, the yarns used in the filling were filament yarns. The Explanatory Notes to the Harmonized Commodity Description and Coding System (EN) to chapter 55, HTSUS, state:

Man-made staple fibres are usually manufactured by extrusion through spinnerets (jets) having a large number of holes (sometimes several thousand); the filaments from a large number of spinnerets (jets) are then collected together in the form of a tow. This tow may be stretched and then cut into short lengths, either immediately or after having undergone various processes (washing, bleaching, dyeing, etc.) while in the tow form. The length into which the fibres are cut is usually between 25 mm and 180 mm and varies according to the particular man-made fibre concerned, the type of yarn to be manufactured and the nature of any other textile fibres with which they are to be mixed.

It is your opinion that as the EN to chapter 55 describe only one method of manufacture for staple fibers (i.e., extruded filaments which have been assembled into a tow and cut to short lengths), and that method is not descriptive of the filling yarns in the subject merchandise which have been generated from filament fiber yarns, the filling yarns in the subject merchandise cannot be classified as staple fiber yarns. We note however, that as the EN to chapter 55 state "Man-made staple fibres are usually manufactured by extrusion through spinnerets...", this statement in no way mandates the preclusion of all other manufacturing processes. This statement is simply illustrative of one of the manufacturing processes involved in producing staple fibers and should not be given a restrictive reading. We direct your attention to the following lexicographic sources which provide useful information with respect to a definition of "staple":

Natural fibers or cut lengths from filaments. The staple length of natural fibers varies from less than 1 inch as with some cotton fibers to several feet for some hard fibers. Man-made staple fibers are cut to a definite length, from 8 inches down to about 1-1/2 inches (occasionally down to 1 inch), so that they can be processed on cotton, woolen, or worsted yarn spinning systems. The term staple (fiber) is used in the textile industry to distinguish natural or cut length man-made fibers from filament. Man-Made Fiber and Textile Dictionary, 1974, at 110;

Term used to indicate lengths of fiber that require spinning and twisting in the manufacture of yarn; man-made fibers that have been cut to a definite length, usually about one and one-half inches, but occasionally down to one inch. Generally done to produce a fiber that can be processed on the cotton and worsted systems.... Fairchild's Dictionary of Textiles, 1970, at 556-557.

As we have discussed, the terms of the EN are to be understood as a simple illustration of but one manufacturing process which yields staple fibers. Although the discontinuous polyester fibers in the subject fabric are not made as described in the EN to chapter 55, the discontinuous fiber does meet the physical description of the final product. Specifically, the final product is discontinuous and is of a length consistent with the specifications in the EN, that is, 25 mm to 180 mm. Furthermore, we note that in the references stated above, the term "staple" is simply an indication of the cutting to specified short lengths to which the filaments are subjected. No specific manner by which the cutting procedure is undertaken is implied or should be inferred. With respect to your reference to NY B86748, this office is currently in the process of reviewing the determination therein.

It is the opinion of this office that the polyester fibers in the filling yarns have been processed, i.e., cut by buffing or napping, so that the fibers are short discontinuous fibers having the characteristics of staple fibers. Based on the Customs laboratory report, in the napped condition, all of the above fabrics, except #5 Seong An", contain less than 85 percent by weight of synthetic filaments. Since in the condition as imported the polyester fibers in the filling yarns are in short lengths, and meet the physical description of "staple fibers", the fabrics designated as "#4 Seong An" and "#6 Seong An", should be classified accordingly. The sample designated as "#5 Seong An" however, is classified as a polyester woven fabric containing 85 percent or more by weight of polyester filaments. HOLDING:

The fabric designated as "#6 Seong An" is properly classified in subheading 5407.93.2050, HTSUSA, which provides for woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404: other woven fabrics: of yarns of different colors: other: other: other: satin weave or twill weave. The applicable general column one rate of duty is 15 percent ad valorem and the quota category is 628.

The fabric designated as "#4 Seong An" is properly classified in subheading 5407.91.2050, HTSUSA, which provides for woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404: other woven fabrics: unbleached or bleached: other: other: satin weave or twill weave. The applicable general column one rate of duty is 16.2 percent ad valorem and the quota category is 628.

The fabric designated as "#5 Seong An" is properly classified in subheading 5407.69.4060, HTSUSA, which provides for woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404: other woven fabrics, containing 85 percent or more by weight of polyester filaments: other: of yarns of different colors: weighing more than 170 g/mý. The applicable general column one rate of duty is 13.6 percent ad valorem and the quota category is 620.

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