CLA-2 CO:R:C:T 953234 HP

Mr. Philip D. Anderson
Empire Trading Company Ltd.
6489 Ridings Road
Syracuse, N.Y. 13206

RE: Classification of double woven fabric with sewing lines. Twill; diaper; sewing; lines; double; woven; weave.

Dear Mr. Anderson:

This is in reply to your letter of December 30, 1992. That letter concerned the tariff classification, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of cloth, produced in China.

FACTS:

The merchandise at issue consists of fabric, which you described as follows:

100% cotton gauze fabric, double woven with lines intended to be used as sewing lines. Bales are 900 foot long by 35" wide.

The sample was found to weigh 1761/2 grams per square meter, and to be composed of a 4 harness twill stripe approximately 12 cm wide, separating areas of three harness twill woven construction. The sample is bleached, and has selvages on both sides. It has an average yarn number of 37. The fabric is identical to fabric intended for use in diapers. The 4 harness twill lines are where the fabric may be folded and/or stitched.

ISSUE:

Whether the fabric is considered made up under the HTSUSA?

LAW AND ANALYSIS:

The General Rules of Interpretation (GRIs) to the HTSUSA govern the classification of goods in the tariff schedule. GRI 1 states, in pertinent part, that such "classification shall be determined according to the terms of the headings and any relative section or chapter notes. . . ." Goods which cannot be classified in accordance with GRI 1 are to be classified in accordance with subsequent GRIs, taken in order. Note 7 to Section XI, HTSUSA, defines the expression "made up" as

(a) Cut otherwise than into squares or rectangles;

(b) Produced in the finished state, ready for use (or merely needing separation by cutting dividing threads) without sewing or other working (for example, certain dusters, towels, tablecloths, scarf squares, blankets);

(c) Hemmed or with rolled edges, or with a knotted fringe at any of the edges, but excluding fabrics the cut edges of which have been prevented from unravelling by whipping or by any other simple means;

(d) Cut to size and having undergone a process of drawn thread work;

(e) Assembled by sewing, gumming or otherwise (other than piece goods consisting of two or more lengths of identical material joined end to end and piece goods composed of two or more textiles assembled in layers, whether or not padded; or

(f) Knitted or crocheted to shape, presented in the form of a number of items in the length.

It is clear from examination of the sample at issue that the fabric is not considered "made up" under Note 7, supra.

Subheading 5208.23., HTSUSA, provides for woven 3-thread or 4-thread twill fabrics of at least 85% cotton, weighing not more than 200 g/m squared. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System (Harmonized System) constitute the official interpretation of the scope and content of the tariff at the international level. They represent the considered views of classification experts of the Harmonized System Committee. Totes, Inc. v. United States, No. 91-09-00714, slip op. 92-153, 14 Int'l Trade Rep. (BNA) 1916, 1992 Ct. Intl. Trade LEXIS 158 (Ct. Int'l Trade 1992). While not treated as dispositive, the EN are to be given considerable weight in Customs' interpretation of the HTSUSA. Boast, Inc. v. United States, No. 91-11-00793, slip op. 93-20, 1993 Ct. Intl. Trade LEXIS 19 (Ct. Int'l Trade 1993). It has therefore been the practice of the Customs Service to follow, whenever possible, the terms of the Explanatory Notes when interpreting the HTSUSA.

The General Explanatory Notes to Section XI describe twill weave as follows:

In twill weave, the first warp thread (end) is bound by the first weft thread (pick), the second warp thread by the second weft thread, the third warp thread by the third weft thread, and so on. * * * The closest twill weave is that in which the weft thread passes (floats) over two warp threads. This is a three thread twill. In a four thread twill, the weft thread passes over three warp threads.

* * *

It should be noted that in heading[] 52.08 . . ., the subheadings relating to "3- thread or 4-thread twill, including double- faced or cross twill", because of their restrictive wording, cover only those twills whose weave patterns are given below:

OXOOXOOX OOOXOOOX XOOXXOOX XOOXOOXO OOXOOOXO OOXXOOXX OOXOOXOO OXOOOXOO OXXOOXXO OXOOXOOX XOOOXOOO XXOOXXOO XOOXOOXO OOOXOOOX XOOXXOOX OOXOOXOO OOXOOOXO OOXXOOXX OXOOXOOX OXOOOXOO OXXOOXXO XOOXOOXO XOOOXOOO XXOOXXOO 3-thread twill 4-thread twill 4-thread cross twill

As we described above, the sample is constructed of 4-thread twill stripes separating 3-thread double woven twill sections. While the 4-thread section is interlaced as described by the Explanatory Note, the double woven 3-thread portion is not. In the double woven section, the first filling thread interlaces with the first warp thread on one side. On the other side, however, the second filling thread interlaces with the first warp thread. Although the interlacing does create on both sides a twill construction, such construction does not conform to the restrictive Explanatory Note patterns. We find, therefore, that the fabric at issue cannot be considered a 3-thread or 4-thread twill of subheading 5208.23, HTSUSA.

Subheading 5208.29.20, HTSUSA, provides for, inter alia, other twill fabrics. Subheading 5208.29.40, HTSUSA, provides for other fabrics with an average yarn number of 42 or below. Although we have determined that this 3-thread twill plus 4-thread twill cannot be classified as either a 3-thread twill or 4-thread twill, we do not feel that this results in a bar to classification as an other twill fabric. To classify a twill + twill fabric as an other- other fabric, rather than as an other-twill fabric, would clearly be erroneous.

HOLDING:

As a result of the foregoing, the instant merchandise is classified under subheading 5208.29.2090, HTSUSA, textile category 317, as woven fabrics of cotton, containing 85 percent or more by weight of cotton, weighing not more than 200 g/m squared, bleached, other fabrics, satin weave or twill weave, other. The applicable rate of duty is 9.1 percent ad valorem.

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, 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 issuance of the U.S. Customs Service, which is updated weekly and is available 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, you should contact your local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.

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

Sincerely,

John Durant, Director
Commercial Rulings Division