CLA-2 RR:CR:TE 959276 RH
Karen Bysiewicz, Esq.
Yelena Slepak, Esq.
Coudert Brothers
1114 Avenue of the Americas
New York, NY 10036-7703
RE: Request for reconsideration of New York Ruling Letter
A80354; heading 5603; heading 5911; GRI 2(a); material vs.
article
Dear Ms. Bysiewicz and Ms.Slepak:
This is in reply to your letter dated May 23, 1996, on behalf of
Ahlstrom Filtration, Inc., requesting reconsideration of New York
Ruling Letter (NY) A80354, dated March 6, 1996.
You provided a sample of the merchandise to aid us in our
determination.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C.
1625(c)(1)), as amended by section 623 of Title VI (Customs
Modernization) of the North American Free Trade Agreement
Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993),
notice of the proposed revocation of NY A80354 was published on
December 24, 1997, in the CUSTOMS BULLETIN, Volume 31, Number 52.
FACTS:
A description of the merchandise set out in NY A80354 reads:
The subject merchandise, consists of wet laid nonwoven
filtration media composed of unspecified synthetic man-made
fibers. You state that this material is produced on a paper
making machine and will be imported in rolls measuring 43
inches wide. The instant sample measures about 1/16" in
thickness and weighs 79g/mý. You indicate that after
importation, these materials will be calendared by Ahlstrom
Filtration Corporation before being shipped to their
customers who will in turn apply various coatings which will
make this material suitable for use in filtration.
Ahlstrom's customers sell the calendered, coated and treated
product for use in filtration applications, such as desalination
of water, purification of water for use in pharmaceutical
products, etc.
In NY A80354, Customs classified your client's product under
subheading 5911.40.0000 of the Harmonized Tariff Schedule of the
Untied States Annotated (HTSUSA), as a straining cloth or the
like. You maintain that the merchandise is classifiable under
subheading 5603.13.0090, HTSUSA, as a nonwoven.
ISSUE:
Is the article under consideration classifiable under heading
5603, HTSUSA, as a nonwoven, or under heading 5911, HTSUSA, as a
textile product for technical uses?
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRIs). GRI 1 provides that
classification shall be determined according to the terms of the
headings and any relative section or chapter notes. Where goods
cannot be classified solely on the basis of GRI 1, the remaining
GRI's will be applied, in the order of their appearance.
Two provisions are at issue in this case. Subheading
5603.13.0090, HTSUSA, provides for "Nonwovens, whether or not
impregnated, coated, covered or laminated: Of man-made filaments:
Weighing more than 70 g/mý but not more than 150 g/mý: Other."
The other provision, subheading 5911.40.0000, HTSUSA, encompasses
"Textile products and articles, for technical uses, specified in
note 7 to this chapter: Straining cloth of a kind used in oil
presses or the like, including that of human hair."
The EN to the Harmonized Commodity Description and Coding System
(Harmonized System) constitute the official interpretation of the
scope and content of the nomenclature at the international level.
They represent the considered views of classification experts of
the Harmonized System Committee. While not treated as
dispositive, the EN are to be given considerable weight in
Customs interpretation of the HTSUSA. It has, therefore, been
the practice of the Customs Service to consult the terms of the
EN when interpreting the HTSUSA.
The EN to heading 5603 provide in pertinent part that:
Except where they are covered more specifically by other
headings in the Nomenclature, the heading covers nonwovens
in the piece, cut to length or simply cut to rectangular
(including square) shape from larger pieces without other
working, whether or not presented folded or put up in
packings (e.g., for retail sale). These include: facing
webs (overlay) for incorporation in laminated plastics; top-sheets for the manufacture of disposable baby napkins
(diapers) or sanitary towels; fabrics for the manufacture of
protective clothing or garment linings; sheets for filtering
liquids or air, for use as stuffing materials, for sound
insulation, for filtration or separation in road building or
other civil engineering works; substrates for manufacturing
bituminous roofing fabrics; primary or secondary backing for
tufted carpets, etc.
Additionally, the EN for heading 5603 list exclusions which
include, among other things, "Nonwovens for technical uses, of
heading 59.11."
You contend that the polyester fabric cannot be classified in
heading 5911 because, in its imported condition, it is incapable
of technical use and is not one of the materials provided for in
Note 7 to Chapter 59. You further assert that no known
commercial applications of Ahlstrom's imported product exists in
the filtration industry. In its uncalendered state, the imported
product would disintegrate under the pressure of liquid passing
through it, unless the pressure is so low that it would be
economically impractical to use the product due to the extremely
slow speed of filtration and the strong likelihood of
disintegration. Moreover, it is economically impractical to use
the imported product for filtration purposes because it can only
retain large particles which defeats the purpose of using it as a
filter.
Additionally, you state that the product, as imported, possesses
loose fiber structure and lacks tensile strength, solvent
resistance, air permeability and adequate pore structure to be
used for filtration or other technical application. After
importation, your client calenders the product, which consists of
heating the fabric in order to change its chemical structure.
The calendering process "dramatically" increases the product's
tensile strength and solvent resistant, while reducing air
permeability and pore size. You provide a chart illustrating the
physical differences between the product as imported and after
calendering.
After calendering, the product is sold to Ahlstrom's customers
who process it by applying coatings and treatments which render
it capable of micro-filtration. You state that not only is
calendering a prerequisite to coating and other treatments of the
product because it eliminates loose fibers and increases solvent
resistance and tensile strength of the fabric, it is technically
impossible to apply coating or other treatments to the product as
imported.
Finally, you state that depending on how the product is
calendered, it can also be used in non-filtration applications
such as a special reinforcing layer in shoes, briefcases, totes
or handbags, or as a layer of support in clothing or in hand
warmers or as a VCR head cleaning tape.
In NY A80354, we held that the product in question was, in
effect, an unfinished filter cloth in its condition as imported
and was, therefore, classifiable as such under the tenets of GRI
2(a). That rule reads in part that "any reference in a heading
to an article shall be taken to include a reference to that
article incomplete or unfinished, provided that, as presented,
the incomplete or unfinished article has the essential character
of the complete or finished article."
In this case, the merchandise is not an incomplete or unfinished
"article" under GRI 2(a) at the time of importation because it
does not have the essential character of a textile product for
technical uses. It is a nonwoven material (imported in rolls)
and may be further processed for use in a variety of articles
such as those mentioned on the preceding page and in the EN to
heading 5603. Since the merchandise is a "material" rather than
an "article," GRI 2(a) is inapplicable. Accordingly, we agree
that the merchandise in its imported condition is classifiable
under heading 5603.
HOLDING:
The merchandise described above is classifiable under subheading
5603.13.0090, HTSUSA, which provides for "Nonwovens, whether or
not impregnated, coated, covered or laminated: Of man-made
filaments: Weighing more than 70 g/mý but not more than 150 g/mý:
Other." It is dutiable at the general column rate at 2.5 percent
ad valorem, and the textile category is 223.
NY A80354 is hereby revoked. In accordance with 19 U.S.C.
1625(c)(1), this ruling will become effective 60 days after its
publication in the CUSTOMS BULLETIN. Publication of rulings or
decisions pursuant to 19 U.S.C. 1625(c)(1) does not constitute a
change of practice or position in accordance with section
177.10(c)(1), Customs Regulations (19 CFR 177.10(c)(1)).
Sincerely,
John Durant, Director
Commercial Rulings Division