CLA-2 RR:CR:TE 964423 mbg
Tariff No.: 5210.31.6020; 52311.31.0020; 5211.21.0020
Mr. Bob Glover
Vice President- Import
L.E. Coppersmith Inc.
2041 Rosecrans Avenue, Third Floor
El Segundo, CA 90245
RE: Request for Classification of Woven Fabrics
Dear Mr. Glover:
This letter is in response to your correspondence with this office dated May 17, 2000, on behalf of your client, Neman Brothers, Inc., requesting classification of six samples of woven fabrics under the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”).
FACTS:
Six samples of woven fabric, each identified as pattern number 2401, were submitted to Customs for analysis. You have stated that all of these fabrics will be imported from Taiwan through the port of Los Angeles.
Sample 1 is identified as color “Slate Blue”. The sample is a plain woven fabric composed of 70.1 percent cotton, 25.5 filament polyester and 4.3 percent filament spandex. It contains 24.4 single yarns per centimeter in the warp and 77.2 single yarns per centimeter in the filling. The warp is composed of single ply cotton yarns while the filling is a 2 ply yarn consisting of 1 ply of filament polyester and 1 ply of filament spandex. The cotton yarn and the polyester ply of the filling yarn have been dyed the same blue-gray color, however, the spandex yarn has been colored a distinctly different purple-red color. The merchandise will be imported in 150 centimeter widths and weighs 197.6 grams per square meter (g/m2). Based on data developed by the Customs laboratory, the average yarn number for this fabric has been calculated to be 51 in the metric system.
Sample 2 is identified as color “Royal Blue”. The sample is a plain woven fabric composed of 69.41 percent cotton, 26.5 filament polyester and 4.1 percent filament spandex. It contains 24.4 single yarns per centimeter in the warp and 77.2 single yarns per centimeter in the filling. The warp is composed of single ply cotton yarns while the filling is a 2 ply yarn consisting of 1 ply of filament polyester and 1 ply of filament spandex. The cotton yarn and the polyester ply of the filling yarn have been dyed the same royal blue color, however, the spandex yarn has been colored a distinctly different shade of blue with a large red component. The merchandise will be imported in 150 centimeter widths and weighs 200.9 g/m2. Based on data developed by the Customs laboratory, the average yarn number for this fabric has been calculated to be 51 in the metric system.
Sample 3 is identified as color “Navy Blue”. The sample is a plain woven fabric composed of 69 percent cotton, 26.8 filament polyester and 4.2 percent filament spandex. It contains 24.4 single yarns per centimeter in the warp and 77.2 single yarns per centimeter in the filling. The warp is composed of single ply cotton yarns while the filling is a 2 ply yarn consisting of 1 ply of filament polyester and 1 ply of filament spandex. The cotton yarn and the polyester ply of the filling yarn have been dyed the same navy blue color, however, the spandex yarn has been colored a distinctly different light blue color. The merchandise will be imported in 150 centimeter widths and weighs 198 g/m2. Based on data developed by the Customs laboratory, the average yarn number for this fabric has been calculated to be 51 in the metric system.
Sample 4 is identified as color “Black”. The sample is a plain woven fabric composed of 70.4 percent cotton, 25.7 filament polyester and 3.9 percent filament spandex. It contains 24.4 single yarns per centimeter in the warp and 77.2 single yarns per centimeter in the filling. The warp is composed of single ply cotton yarns while the filling is a 2 ply yarn consisting of 1 ply of filament polyester and 1 ply of filament spandex. The cotton yarn and the polyester ply of the filling yarn have been dyed the same black color and the spandex yarn has also been colored black, although a slightly different shade. The merchandise will be imported in 150 centimeter widths and weighs 206.2 g/m2. Based on data developed by the Customs laboratory, the average yarn number for this fabric has been calculated to be 49 in the metric system.
Sample 5 is identified as color “White”. The sample is a plain woven fabric composed of 69.6 percent cotton, 26.6 filament polyester and 4 percent filament spandex. It contains 25.2 single yarns per centimeter in the warp and 77.2 single yarns per centimeter in the filling. The warp is composed of single ply cotton yarns while the filling is a 2 ply yarn consisting of 1 ply of filament polyester and 1 ply of filament spandex. The cotton yarn and the polyester ply of the filling yarn have been bleached white and the spandex yarn has been colored the same color. The merchandise will be imported in 150 centimeter widths and weighs 206.2 g/m2. Based on data developed by the Customs laboratory, the average yarn number for this fabric has been calculated to be 50 in the metric system.
Sample 6 is identified as color “Tan”. The sample is a plain woven fabric composed of 70 percent cotton, 25.8 filament polyester and 4.2 percent filament spandex. It contains 25.2 single yarns per centimeter in the warp and 77.2 single yarns per centimeter in the filling. The warp is composed of single ply cotton yarns while the filling is a 2 ply yarn consisting of 1 ply of filament polyester and 1 ply of filament spandex. The cotton yarn and the polyester ply of the filling yarn have been dyed the same beige color, however, the spandex yarn has been colored a slightly different beige color. The merchandise will be imported in 150 centimeter widths and weighs 205.4 g/m2. Based on data developed by the Customs laboratory, the average yarn number for this fabric has been calculated to be 50 in the metric system.
ISSUE:
What is the proper classification of the subject merchandise under the HTSUSA?
LAW AND ANAYSIS:
Classification of goods under the HTSUSA is governed by the General
Rules of Interpretation (“GRIs”). GRI 1 provides that classification shall be determined according to the terms of the heading 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 Explanatory Notes (“EN”) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI.
There is no dispute as to the classification of the subject merchandise at the four digit heading level. Headings 5210 and 5211, HTSUSA, provide for cotton woven fabrics and vary depending upon the weight of the fibers in the fabrics. However, the classification of the subject merchandise at the subheading level depends upon the interpretation of a legal note to the Harmonized Tariff that potentially impacts which textile fibers these fabrics are considered to be composed of for purposes of classification under the HTSUSA. The question has arisen in this case as to whether woven fabrics with a small amount of dyed spandex fibers whose color is invisible to the naked eye but is of a different color than the majority of the yarn should be classified as a dyed woven fabric or as a fabric consisting of yarns of different colors. The color of the spandex fiber in the subject samples would not have been apparent if an analysis of the fiber weight had not been done.
Legal Note 2 to Section XI, HTSUSA provides:
Goods classifiable in Chapter 50 to 55 or in heading No. 5809 or 5902 and of a mixture of two of more textile materials are to be classified as if consisting wholly of that one textile material which predominates by weight over any other single textile materials.
When no one textile material predominates by weight, the goods are to be classified as if consisting wholly of that one textile material which is covered by the heading which occurs last in numerical order among those which equally merit consideration.
Based on the application of Legal Note 2, all of the subject woven fabrics would be classified based upon a chief weight of cotton.
A detailed review of the appropriate ENs is necessary for the determination of the proper classification of the subject merchandise. In discussing woven fabrics, the General ENs to Chapters 50 to 55 of Section XI provide:
The woven fabrics of Chapters 50 to 55 are products obtained by interlacing textile yarns (whether of the kinds classified in Chapters 50 to 55 or those regarded as twine, cordage, etc., of heading 5607), rovings, monofilament or strip and the like of Chapter 54, loop wale-yarn, narrow ribbons, braids or narrow fabrics (consisting of warp without weft assembled by means of an adhesive, etc.) on warp and weft looms.
However, Subheading Explanatory Notes are also included in the General Notes to Section XI which provide:
* * * *
(f) Bleached woven fabric
Woven fabric which :
(i) has been bleached or, unless the context otherwise requires, dyed white or treated with a white dressing, in the piece;
(ii)consists of bleached yarn; or
(iii)consists of unbleached and bleached yarn.
(g) Dyed woven fabric
Woven fabric which :
(i) is dyed a single uniform colour other than white (unless the context otherwise requires) or has been treated with a coloured finish other than white (unless the context otherwise requires), in the piece; or
(ii)consists of coloured yarn of a single uniform colour.
(h) Woven fabric of yarns of different colours
Woven fabric (other than printed woven fabric) which :
(i)consists of yarns of different colours or yarns of different shades of the same colour (other than the natural colour of the constituent fibres);
(ii)consists of unbleached or bleached yarn and coloured yarn; or
(iii)consists of marl or mixture yarns.
(In all cases, the yarn used in selvedges and piece ends is not taken into consideration.)
* * *
(k) Plain weave
A fabric construction in which each yarn of the weft passes alternately over and under successive yarns of the warp and each yarn of the warp passes alternately over and under successive yarns of the weft.
* * * *
Application of the above ENs in light of Legal Note 2 to Section XI necessitates that the classification of the subject woven fabrics would be based upon the chief weight of the cotton yarns. However, further processing of the woven fabric also impacts the tariff classification. The “White” sample has been bleached and therefore the proper subheading classification level will be 5211.21.0020, HTSUSA. The classification of the other subject fabric samples depends upon whether Customs considers the spandex ply of the filament yarns in the samples designated as “Slate Blue”, “Royal Blue”, “Navy Blue”, and “Black” to be a factor in the classification at the subheading level.
Each of these samples has 1 ply of spandex yarn which has been determined by the Customs laboratory to be dyed a different color than the single ply cotton yarns of the warp. Subheading Explanatory Note (h) in the General Notes to Section XI, HTSUSA, would seem to necessitate that the classification of these woven fabrics would reflect the yarns of different colors despite their “invisibility.” Yet, the dying of these spandex filaments cannot be seen by the naked eye and therefore classification under Subheading EN (h) would make the discovery of such yarns dependant upon laboratory testing in all cases.
GRI 2(b) states goods are classified according to the material on which they are “wholly made” and specifically provides that “[a]ny reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material or substance.” General Note 21, HTSUSA, provides in relevant part:
For the purposes of the tariff schedule, unless the context otherwise requires:
(e) the terms “wholly of”, “in part of”, and “containing”, when used between the description of an article and a material (e.g., “woven fabrics”, wholly of cotton”), have the following meanings:
(i) “wholly of” means that the goods are, except for negligible or insignificant quantities of some other material or materials, composed completely of the named material;
(ii) “in part of” or “containing” mean that the goods contain a significant quantity of the named material.
With regard to the application of the quantitative concepts specified above, it is intended that the de minimis rule apply.
The maxim, de minimis non curat lex, the law takes no account of triffles, is applicable in Customs practice principally in determining whether the presence of some ingredient in an imported commodity affects its classification. The issue must be decided in each case on the basis of the character of the article and the language and purpose of the tariff provision. Canada Dry Ginger Ale, Inc. v. United States, 43 Cust. Ct. 1, C.D. 2094 (1959), appeal dismissed, 47 CCPA 173 (1959). An ingredient or compound may or may not be disregarded for tariff purposes, not necessarily because of the quantity present, but on the basis of varying circumstances, including the purpose of Congress and whether or not the amount of the material has changed the nature of the article or its salability. Varsity Watch Company v. United States, 34 CCPA 155, C.A.D. 359 (1947).
In the subject merchandise, the spandex thread is of a de minimis quantity, however, since the spandex thread provides a noticeable amount of elasticity to the overall composition of the fabric, Customs does not believe that the spandex filament can be disregarded for classification purposes based on the de minimis rule. In spite of this, Customs believes that requiring laboratory testing in order to determine whether the 1 ply spandex filament is dyed the same color as the other plys in the fabric when these spandex filaments are invisible to the naked eye, imposes a burden on importers as well as the Customs Service. Increased levels of laboratory testing on dyed fabrics to determine the HTSUSA classification at the subheading level when spandex filaments are not plainly visible with the eye creates an absurd and anomalous result.
In Ambassador Div. of Florsheim Shoe v. United States, 748 F.2d 1560 (Fed. Cir. 1984), in determining the meaning of provisions in a statute, the court employed the technique of testing an interpretation of the statutes by the absurdity of its consequences. Similarly, Customs believes that the classification of the subject merchandise as woven fabrics of yarns of different colors, when those yarns on which the classification hinges are not visible to the naked eye, creates an absurd and unreasonable requirement for laboratory testing. As such Customs will disregard the small amount of 1 ply spandex filament yarns which are a different color for classification of the subject merchandise. Therefore, the woven fabrics will be classified based on the cotton ply which predominates by weight in the overall composition of the subject fabrics without regard to any color differences in the spandex yarn discovered only under meticulous fiber content analysis.
HOLDING:
The woven fabrics identified as colors “Slate Blue” and “Navy Blue” are properly classified under subheading 5210.31.6020, HTSUSA, which provides for “Woven fabrics of cotton, containing less than 85 percent by weight of cotton, mixed mainly or solely with man-made fibers, weighing not more than 200 g/m2: Dyed: Plain weave: Of numbers 43 to 68: Poplin or broadcloth.” The provision is dutiable under the general column one rate at 12.2 percent ad valorem. The textile category designation is 314.
The woven fabrics identified as colors “Royal Blue”, “Black” and “Tan” are properly classified under subheading 5211.31.0020, HTSUSA, which provides for “Woven fabrics of cotton, containing less than 85 percent by weight of cotton, mixed mainly or solely with man-made fibers, weighing more than 200 g/m2: Dyed: Plain weave: Poplin or broadcloth.” The provision is dutiable under the general column one rate at 8.6 percent ad valorem. The textile category designation is 314.
The woven fabric identified as color “White” is properly classified under subheading 5211.21.0020, HTSUSA, which provides for “Woven fabrics of cotton, containing less than 85 percent by weight of cotton, mixed mainly or solely with man-made fibers, weighing more than 200 g/m2: Bleached: Plain weave: Poplin or broadcloth.” The provision is dutiable under the general column one rate at 8.6 percent ad valorem. The textile category designation is 314.
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 renegotiations and changes, to obtain the most current information available, we suggest that you check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service, which is available for inspection at your 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 applicable to textile merchandise, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division