Reconsideration of NY N092517; classification of polyester knit fabric

HQ H200432 April 15, 2015 CLA-2 OT:RR:CTF:TCM  H200432 CkG CATEGORY: Classification TARIFF NO.: 6001.92.00 Mr. Peter J. Duncan, Sr. Duncan Ticking P.O. Box 60862 Oklahoma City, OK 73146 Re: Reconsideration of NY N092517; classification of polyester knit fabric Dear Mr. Duncan: In your letter dated December 22, 2010, on behalf of Duncan Ticking Inc., you requested the reconsideration of New York Ruling Letter (NY) N092517, dated June 3, 2010. In NY N092517, two styles of polyester fabric, identified as Soflon 5.0/5.5mm Cream and HiSoftex Ivory Boucle, were classified in heading 6001, HTSUS, as pile fabric. A third style of polyester fabric was classified in heading 6005, HTSUS, as a warp knit other than those of headings 6001 to 6004. You claim that the correct classification of the Soflon and HiSoftex fabrics is in heading 6005, HTSUS, and you request that CBP reconsider the classification of these two styles in heading 6001, HTSUS. You do not contest the classification of the third style in heading 6005, HTSUS. FACTS: NY N092517 described the subject merchandise, in relevant part, as follows: Your correspondence indicates that all three fabrics will be used as mattress ticking coverings for the production of mattresses. The first submitted sample is identified as product name Soflon 5.0/5.5mm Cream, and described as a warp knit fabric, of 100% polyester dyed filament yarn. Laboratory analysis indicates that it is a warp knit cut pile fabric composed wholly of polyester fibers, weighing 263.2 g/m2 and measuring 13 stitches per centimeter in the vertical direction. You have indicated that the fabric will be imported in rolls in widths of 235 centimeters. The second item, identified as product name HiSoftex Ivory Boucle, is described as a warp knit fabric, of 100% polyester dyed filament yarn. Laboratory analysis indicates that the fabric a warp knit cut pile fabric, weighing 257 g/m2 and measuring 13 stitches per centimeter in the vertical direction. You have indicated that the fabric will be imported in rolls in widths of 235 centimeters. Samples of the Soflon 5.0/5/5 and HiSoftex fabrics at issue were sent to the CBP laboratory for analysis. In Laboratory Reports NY20100156 and NY20100159, the CBP Laboratory concluded that both samples were warp knit cut pile fabric. In NY20100159, the Laboratory concluded that the HiSoftex fabric featured 3 bar warp knit cut pile construction, and that the front bar yarn had been cut to create the cut pile surface. ISSUE: Whether the Soflon and HiSoftex fabrics are classified in heading 6001, HTSUS, as pile fabrics, or heading 6005, HTSUS, as warp knit fabrics other than those of headings 6001 to 6004. LAW AND ANALYSIS: The HTSUS provisions at issue are as follows: 6001: Pile fabrics, including "long pile" fabrics and terry fabrics, knitted or crocheted: Other: 6001.92.00: Of man-made fibers. . * * * * 6005: Warp knit fabrics (including those made on galloon knitting machines), other than those of headings 6001 to 6004: Of synthetic fibers: 6005.32.00: Dyed. . . . * * * * * EN 60.01 provides, in pertinent part, as follows: 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 : 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 pile and thus give a velvetlike surface; 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; textile fibres from a carded sliver are inserted into the loops of a knitted ground fabric as it is formed (“ long pile ” fabrics); 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 characterised by rows of stitches having the appearance of running stitches along the length of the back of the fabric. * * * * * You claim that the subject merchandise is not pile fabric of heading 6001, HTSUS, because it is not subjected to any of the processes listed in the EN to heading 60.01 for making pile fabric, and the pile is not cut. However, as noted above, both samples were tested by the CBP Laboratory, which determined that they were both of warp knit cut pile construction. The initial burden of proof in challenging the reliability of a CBP laboratory report lies with the importer. As the court noted in Libas, Ltd. v. United States, 118 F. Supp. 2d 1233 (CIT 2000), an importer may rebut the presumption of correctness by showing that CBP’s methods or results are erroneous. You have not presented any evidence challenging CBP’s methods or indicating that the results were erroneous. A mere description of the merchandise which contradicts the results of the CBP Laboratory tests is not evidence of an erroneous result on the part of the CBP Laboratory and is not sufficient to rebut the presumption of correctness due a Customs laboratory report. With respect to your argument that the instant fabric cannot be considered a pile fabric because it is not subjected to any of the processes listed in the EN to heading 60.01, we note that it is well established that the processes enumerated in EN 60.01 are illustrative, rather than exclusive. See e.g., HQ H013078, dated October 2, 2007; HQ 966062, dated March 11, 2003. The EN specifically states that the methods of production listed are those "mainly used" in the formation of pile fabric, not “solely” or “exclusively” used. As stated in HQ 951374, dated October 30, 1992, "if during the weaving or knitting of a fabric, yarns are caused to project from the surface(s) (i.e., the base material) of that fabric creating a "pile" appearance, that fabric will be considered a pile fabric for the purposes of the HTSUS." According to the CBP laboratory reports, both fabrics at issue have the characteristics of a pile fabric. Thus, whether the method of production is specifically enumerated in the EN is not relevant to their classification. The fabric at issue is knitted in such a manner that the laid-in yarns protrude from the base material. Accordingly, the subject merchandise has been processed in such a manner so as to be properly classifiable under heading 6001, HTSUS, as a pile fabric. Finally, you argue that the machinery used to manufacture the instant merchandise is unable to produce a cut pile fabric. First, we note that classification in heading 6001, HTSUS, is not contingent on the fabrics being cut pile specifically as opposed to other types of pile construction. In any case, you fail to provide any evidence of this claim, such as the model number and specifications of the machine or machines at issue, or any means of verifying that the referenced machine was the one used to manufacture the instant merchandise. Furthermore, while you do not specify the model number of the Karl Meyer machine used to manufacture the instant fabrics, several models of Karl Meyer warp knitting textile machinery appear generally capable of producing pile fabrics, including cut pile fabrics such as velour. See e.g., https://www.karlmayer.com/internet/en/kmweltweit/4832.jsp; https://www.karlmayer.com/internet/en/textilmaschinen/hks2.jsp; https://www.karlmayer.com/internet/en/textilmaschinen/5096.jsp. The Karl Mayer website further notes that attachments are also available for those machines which do not have the innate capability of manufacturing cut pile fabric. Thus, your claim that the machines used lack the capacity to manufacture cut pile fabric is insufficient to rebut the findings of the CBP Laboratory. HOLDING: By application of GRI 1, the instant fabrics are classified in heading 6001, HTSUS, specifically subheading 6001.92.00, HTSUS, which provides for “Pile fabrics, including "long pile" fabrics and terry fabrics, knitted or crocheted: other: of man-made fibers.” The 2015 column one, general rate of duty is 17.5% ad valorem. Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided online at www.usitc.gov/tata/hts/. EFFECT ON OTHER RULINGS: NY N092517, dated June 3, 2010, is hereby affirmed. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division