CLA-2 CO:R:C:G 084937 HP
Lynne W. Wendt, Esq.
Sandler, Travis & Rosenberg, P.A.
Attorneys At Law
230 Peachtree Street, N.W.
Atlanta, Georgia 30303-1527
RE: Fabric for lead acid batteries
Dear Ms. Wendt:
This is in reply to your letter of May 22, 1989, to our New
York office, concerning the tariff classification of textile
tubing fabric for batteries, produced in Switzerland, under the
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA).
FACTS:
The merchandise at issue consists of woven textile tubing
fabric for lead acid batteries. It is composed of 60 percent
staple polyester, and 40 percent staple polypropylene. You have
submitted laboratory analysis supporting your claim that the
fabric is flat woven with multiple warp. After intimate blending
via carding, two spun yarns are obtained: warp NE 26/2, weft NE
18/1. The single yarns measure 21/cm warp, and 18/cm weft. The
fabric weighs 340 rown
yarns woven into the sides to control shrinkage. The fabric is
to be imported in double folded layers of approximately 200
meters each, representing approximately 10,000 tubes per length
of fabric.
After importation, the fabric is thermoset into rigid
channels by placing heated copper rods through the channels. The
copper rods are removed and the open passages remain fixed in
shape. The product is then cut to approximate size, and lead
rods are placed down the center of each of the channels. The
remaining space in the rigid channels are then packed with lead
powder. A series of these tubular products are then connected to
form the positive plate of an industrial battery. The whole
assemblage, now known as a gauntlet, is placed inside the
battery, in contact with an acid solution.
ISSUE:
Whether the instant merchandise is considered more than mere
fabric for classification purposes?
LAW AND ANALYSIS:
Heading 5909, HTSUSA, provides for textile hosepiping and
similar textile tubing. 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 tubing of textile material used for the passage
of fluids. "Textile tubing is also classified here if it is
coated on the inside ..., armoured ... or fitted with non-textile
accessories such as fittings ..., nozzles, etc."
The product at issue does not carry fluids, nor is it
coated. In addition, this product would not normally be known as
hose; generally, a single continuous flexible tube or pipe. In
our view, therefore, the instant merchandise is not classifiable
under heading 5909.
Heading 5911, HTSUSA, provides for textile products and
articles, for technical uses. The General Rules of
Interpretation (GRIs) 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 GRIs, taken in order.
Note 7 to Chapter 59, HTSUSA, provides, in pertinent part:
Heading 5911 applies to the following goods, which do
not fall in any other heading of section XI:
(a) Textile products in the piece, cut to length or
simply cut to rectangular (including square) shape
(other than those having the character of the
products of headings 5908 to 5910), the following
only:
* * *
(iv) Flat woven textile fabric with multiple warp
or weft, whether or not felted, impregnated
or coated, of a kind used in machinery or for
other technical purposes;
* * *
The term "textile products and articles for technical uses"
has, in the past, been afforded a broad meaning. See, e.g., HRL
083864 of May 4, 1989 (grass catcher bags for lawn mowers); HRL
081817 of January 17, 1989 (dampening roller covers); HRL 082150
of November 30, 1988 (vacuum cleaner bags). It is our opinion,
therefore, that textile fabric used to sheath the positive plates
of industrial lead acid batteries is provided for by heading
5911, HTSUSA.
Subheading 5512.99.0005, HTSUSA, the appropriate subheading
for this merchandise if heading 5911 had not been applicable,
provides for certain woven fabrics of yarns of different colors.
As we stated, the color of the fabric is a natural white with a
series of brown yarns woven into the sides to control shrinkage.
A question was raised by our New York office as to whether we
disregard these brown yarns for classification purposes.
Subheading Note 1(h) to Section XI, HTSUSA, defines woven
fabric of yarns of different colors as:
Woven fabric (other than printed woven fabric) which:
(i) consists of yarns of different colors or yarns of
different shades of the same color (other than the
natural color of the constituent fibers);
(ii) consists of unbleached or bleached yarn and
colored 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.)
Linton's The Modern Textile and Apparel Dictionary (4th ed.
1973), at 501, defines selvages (a.k.a. selvedges) as follows:
Originated from the term "self-edge." Actual part of
the cloth running in the warp direction along both
edges of the cloth. Its purpose is to keep the edges
of the cloth true, straight, even and parallel.
[Emphasis added.]
It is our opinion that the brown yarns do not function in
ways traditionally associated with selvedges. They do not fix
the edges of the fabric, but have a novel technical use;
specifically, the control of fabric shrinkage. To exclude them
from consideration in assessing whether the fabric is of differ-
ent colors would, therefore, be inappropriate.
HOLDING:
As a result of the foregoing, the instant merchandise is
classified under subheading 5911.90.0000, HTSUSA, as textile
products and articles, for technical uses, specified in note 7 to
this chapter, other. The applicable rate of duty is 7.5 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 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