HQ 085549: Curtain Fabric

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 085549

                        November 21, 1989


CLA-2 CO:R:C:G  085549  HP

CATEGORY:  Classification

TARIFF NO.:  6307.90.9050

Ms. Ann M. Williams
A.N. Derringer, Inc.
30 West Service Road
Champlain, NY 12919-9703

RE:  Curtain Fabric

Dear Ms. Williams:

     This is in reply to your letter of August 15, 1989,
concerning the tariff classification of curtain fabric, produced
in France, under the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA).  Please reference your client
Commonwealth Curtain Co., Ltd.

FACTS:

     The merchandise at issue consists of 100% woven semi-trans-
parent polyester fabric, imported in 30 to 60 yard rolls, 88.5"
and 98.5" wide.  The 88.5" fabric will make 84" long panels or
pinch pleated drapes; the 98.5" fabric into 95" panels or drapes.

One side is embroidered with a Cornelli hem (also known as a
replique hem), made by folding one edge of the fabric upon itself
and stitching it in a decorative pattern.  No lines of
demarcation exist on the fabric.

     Once in the United States, the fabric is cut according to
the width of the panel or drape.  The sides are hemmed on a blind
stitch machine.  The panel rod pocket head (on top) is made on a
Metropolitan machine.  The drape top is made on a tacker machine.

The panels or drapes are then steam pressed, folded, and
packaged.

     You have stated that the fabric will be used exclusively for
the manufacturing of curtain panels and pinch pleated draperies,
and cannot be used for any other purpose.











ISSUE:

     Whether the instant merchandise is considered made up under
the HTSUSA?







LAW AND ANALYSIS:

     Made Up Articles

          Section XI, HTSUSA, provides for textiles and textile
articles.  The General Rules of Interpretation (GRI's) to the
HTSUSA govern the classification of goods in the tariff schedule.

GRI 1 states, in pertinent part:

          ... 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 GRI's, taken in
order.

     Note 7 to Section XI provides, in pertinent part:

          For the purposes of [Section XI], the expression "made
          up" means:

                              * * *

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

     To be considered "made up," the hem on the instant fabric
must be necessary for the intended use of the merchandise.  HRL
083013 of March 20, 1989; HRL 084348 of August 3, 1989.  See HRL
083862 of June 12, 1989 (hem on two sides of umbrella cover
fabric merely prevented material from unravelling and did not
dedicate material to specific use).  It is our opinion that the
instant merchandise meets this qualification.  The Cornelli hem,
in addition to preventing the material from unravelling, is
highly decorative and creates the hem of the curtain.  The fabric
is therefore considered made up under Section XI, HTSUSA.

     Unfinished Curtains

          Heading 6307, HTSUSA, provides for, inter alia,
articles in the length, made up within the meaning of Note 7 to
Section XI, supra, provided they are not included in other
headings of Section XI.  Therefore, if the instant merchandise is
not more specifically provided for in another heading,
classification as an other made up article would be appropriate.

     Heading 6303, HTSUSA, provides for, inter alia, curtains and
drapes.  The Explanatory Notes to the HTSUSA constitute the







official interpretation of the tariff at the international level.

The Explanatory Note to this heading includes therein:







          (1)  Curtains (including drapes), which are
               used, for example, inside windows or to
               close recesses, theatre stages, etc.
               The expression "curtains" covers light-
               weight and transparent or semi-transpar-
               ent articles and articles made of thick
               fabrics.

                              * * *

               The heading also covers material in the
          length so processed after weaving that it is
          clearly suitable for conversion, by a minor
          operation, into finished articles of this
          heading (e.g., fabric in the length to one
          edge of which has been added a frilled border
          and which, by simply cutting to required
          lengths and hemming, is converted into cur-
          tains).  [Emphasis added.]

     In United States v. Buss & Co., 5 Ct. Cust. Appls. 110, T.D.
34138 (1914), Judge Martin recognized that

          ... most small articles are not produced as
          individual or separate products of the loom,
          but for economy of manufacture are first
          woven "in the piece."  The rule of decision
          is therefore established that where such
          articles are imported in the piece and noth-
          ing remains to be done except to cut them
          apart they shall be treated for dutiable
          purposes as if already cut apart and assessed
          according to their individual character or
          identity.  It follows, however, only in case
          the character or identity of the individual
          articles is fixed with certainty and in case
          the woven piece in its entirety is not
          commercially capable of any other use.

     Under the Buss rule, therefore, we must decide (1) whether
the addition of the hem rendered the fabric commercially
unsuitable for use as anything other than curtains or draperies,
and (2) whether the addition of the hem enabled the actual
individual drapery to be fixed with certainty.  Coraggio Design,
Inc. v. United States, No. 84-5-00658, Slip Op. 88-22, 22 Cust.
B. & Dec. 12/13 at 57 (Ct. Int'l Trade 1988).

     You have implied, and we agree, that the addition of the
Cornelli hem dedicates the material for use solely as a curtain
or drapery, commercially unsuitable for any other use.  We do not
believe, however, that the addition of the hem enabled actual
individual draperies to be fixed with certainty.







     It is a well settled maxim in Customs law that

          no matter how close the importation is to the
          finished article or how dedicated it is to a
          single use, it remains a material until the
          identity of actual articles can be seen emer-
          ging with certainty from the undifferentiated
          material.

Id., 22 Cust. B. & Dec. at 60 (quoting Bendix Moldings, Inc. v.
United States, 73 Cust. Ct. 204, 206, C.D. 4576, 388 F. Supp.
1193, 1194-95 (1974)) (citations omitted).  "The exact point in
the processing at which the material becomes a partly finished
article must be determined on the basis of the circumstances of
each case."  Id. (citations omitted).

     In the instant case, a specific drapery cannot be seen
emerging from the fabric.  Rather, there remain significant
processing steps after importation: the fabric must be cut
according to specifications, the sides hemmed, the panel rod
pocket head formed, the drape top made, the drapes steam pressed,
folded, and finally packaged.  The fabric, therefore, is not
discernable as an individual article, and is not significantly
advanced in the manufacturing process to be more than mere
material.

HOLDING:

     As a result of the foregoing, the instant merchandise is
classified under subheading 6307.90.9050, HTSUSA, as other made
up articles, including dress patterns, other, other, other.  The
applicable rate of duty is 7 percent ad valorem.  Any rulings in
conflict with this decision are hereby modified accordingly.

     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 agree-
ments 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 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 applicability of any import restraints or
requirements.







                                   Sincerely,


                                   John Durant, Director
                                   Commercial Rulings Division