CLA-2 CO:R:C:T 952938 BC
Robert J. Richter
District Director of Customs
U.S. Customs Service
1 East Bay Street
Savannah, GA 31401
RE: Further review of protest no. 1704-92-100250; nonwoven
laminated fabric imported in rolls and used in batteries; battery
separator; not a battery part; technical use fabric; Note 7,
Chapter 59, HTSUSA
Dear Mr. Richter:
The following is our response to the application for further
review of protest no. 1704-92-100250 that your firm filed on
behalf of Duracell U.S.A. The protest, timely filed on July 9,
1992, covers three entries that were liquidated on April 10,
1992.
FACTS:
The PROTESTANT, Duracell U.S.A., is an importer of
merchandise described as a nonwoven laminated textile material
that is used in alkaline-electrolyte electrochemical batteries.
The material is imported in bulk rolls many yards long and in
various widths ranging from 36 inches to 48 inches. After
importation, the material is cut into numerous narrower rolls
approximately one inch wide. This narrower material is cut to
length (believed to be in the range of 2.5 to 4.5 inches) and
inserted into size "C" and "D" batteries as they are being
produced. Its function is to separate the anode from the cathode
so as to prevent shorting and gassing of the battery. It is
produced through an adhesive system patented by Duracell, Inc.,
whereby an absorbent nonwoven blend of here unnamed fibers is
bonded by an adhesive to a barrier film of regenerated cellulose.
PROTESTANT filed three entries covering the subject
merchandise, dated November 22, December 14, and December 30,
1991. The entries incorrectly classified the merchandise as
condenser paper under subheading 4805.60, Harmonized Tariff
Schedule of the United States Annotated (HTSUSA). Customs issued
a CF 28, requesting further information regarding the
merchandise. PROTESTANT did not respond. Customs then issued a
Notice of Action/Rate Advance, dated March 18, 1992, indicating
that the merchandise was classifiable as nonwoven laminated
fabric under subheading 5603.00.30, HTSUSA, dutiable at 16% ad
valorem. The entries were liquidated as such on April 10, 1992,
and PROTESTANT filed the instant protest.
ISSUE:
What is the proper classification for the laminated nonwoven
textile material used as separators in alkaline-electrolyte
electrochemical batteries?
LAW AND ANALYSIS:
In this protest, PROTESTANT first asserts that the laminated
nonwoven textile material at issue is classifiable as a battery
part under subheading 8506.90.00, HTSUSA. However, given the
fact that the merchandise at issue is entered on rolls, in
material lengths, it is not in the form of a "part." In one of
the rulings cited by PROTESTANT (for the alternative proposition
that merchandise of the kind at issue is classifiable as
technical use fabric under subheading 5911, HTSUSA), Headquarters
Ruling Letter (HRL) 084610, dated May 17, 1990, Customs addressed
the same issue - nonwoven textile material imported on rolls in
material lengths - and held that merchandise imported in material
lengths cannot be classified as a part. This represents Customs
position, generally. (See also HRL 953056, June 16, 1993.)
PROTESTANT cites Heraeus-Amersil, Inc. v. United States, 10
CIT 258 (1986), for the proposition that the instant imported
merchandise, although imported in a roll in material lengths, can
be classified as a part. PROTESTANT also cites in this respect
HRL 081606, dated August 10, 1988, a Customs ruling that
addressed Heraeus-Amersil.
In Heraeus-Amersil, the United States Court of International
Trade (CIT) held that contact tape (wire) imported on reels in
continuous lengths is classifiable as parts of telephone relays.
There, the contact tape was wound from the reel and positioned on
the relay, where it was then welded to the relay to appropriate
strengths. When the welding was completed, the contact tape was
cut to the appropriate length. PROTESTANT contends that this
operation is analogous to what takes place in the instant case
with the laminated nonwoven (battery separator) material.
However, there is a significant distinction between the
instant case and Heraeus-Amersil. The contact tape in Heraeus-
Amersil was applied to the relay directly from the reel that was
imported; in other words, the reeled contact tape in its imported
condition was not altered prior to application of the tape to the
relay. Even then, the positioning, welding and cutting were not
alterations but steps in the assembly process. In the instant
case, the imported roll of laminated nonwoven material was cut
into smaller rolls after importation. Thus, the laminated
nonwoven material was altered from its imported condition prior
to its application in the assembly process. Consequently,
Heraeus-Amersil is distinguishable on its facts. Moreover,
Heraeus-Amersil determined a classification issue under the
Tariff Schedules of the United States, the tariff that has since
been replaced by the HTSUS.
In HRL 081606, Customs held that imported cold rolled steel
strip was not classifiable as a battery part because, after
importation in rolls, or coils, the steel strip was subjected to
an electromechanical process to deposit active nickel and cadmium
oxides. (In addition, it was then cut to two inch lengths, with
connecting tabs welded to them.) The ruling stated that the
post-importation processing was not a mere cutting to length as
took place in Heraeus-Amersil. Like Heraeus-Amersil, this ruling
is distinguishable on its facts and is thus inapplicable to the
instant case.
As an alternative to classification of the laminated
nonwoven material as a part, PROTESTANT contends that it should
be classified as a textile for technical use in Chapter 59,
HTSUSA. We agree.
Because the laminated nonwoven material at issue is used as
a battery separator designed to separate the cathode from the
anode in alkaline-electrolyte electrochemical batteries,
specifically to separate the substances that chemically react to
produce the batteries' power, we believe that the use of this
material qualifies as technical. It is specifically designed by
a patented process to possess the properties necessary to
accomplish this separation. We also believe that an alkaline-
electrolyte electrochemical battery qualifies as the kind of
instrument (or similar device) referred to in the Explanatory
Notes for subheading 5911: "The textile products and articles of
this heading present particular characteristics which identify
them as being for use in various types of machinery, apparatus,
equipment or instruments or as tools or parts of tools."
(Harmonized Commodity Description and Coding System, p. 822.)
Note 7 of Chapter 59, HTSUSA, governs the classification of
textile products and articles for technical use under subheading
5911, HTSUSA. Because the merchandise at issue is a textile
product "in the piece," Note 7(a) is applicable. Under Note
7(a), we find that paragraph (i) is applicable: "Textile
fabrics, felt and felt-lined woven fabrics, coated, covered or
laminated with rubber, leather or other material, of a kind used
for card clothing, and similar fabrics of a kind used for other
technical purposes." While Note 1, Chapter 59, HTSUSA, provides
that the term "textile fabrics" applies "only to the woven
fabrics of chapters 50 to 55 and headings 5803 and 5806 . . .,"
this limitation is qualified by the words, "except where the
context otherwise requires." The context of subheading 5911,
HTSUSA, pertaining to technical use fabrics, is a context given
to "require otherwise," as evidenced by the Explanatory Notes for
subheading 5603, HTSUSA: "The heading also excludes: (ij)
Nonwovens for technical uses, heading 59.11."
HOLDING:
Based on the foregoing, we conclude that the laminated
nonwoven textile material used to act as battery separators in
alkaline-electrolyte electrochemical batteries is classifiable
under subheading 5911.10.2000, HTSUSA, as a textile product for
technical use specified in note 7 to Chapter 59, HTSUSA: textile
fabric combined with one or more layers of rubber, leather or
other material, of a kind used for card clothing and similar
fabric for other technical uses: other. The applicable duty rate
is 7.5% ad valorem.
You are hereby instructed to reliquidate the entries covered
by this protest in accordance with the above holding. Please
attach a copy of this decision to the CF 19, Notice of Action,
provided to PROTESTANT.
Sincerely,
John Durant, Director