CLA-2 CO:R:C:G 084639 HP
Mr. John F. McManus
C.Itoh & Co. (America) Inc.
335 Madison Avenue
New York, NY 10017
RE: Classification of Fibrous Ion Exchange Resin
Dear Mr. McManus:
This is in reply to your letter of May 10, 1989, requesting
a reconsideration of divergent Binding Rulings on fibrous ion
exchange resin for use in tobacco filters. Reference NYRL 833803
of January 27, 1989, and HRL 083646 of April 28, 1989.
FACTS:
The merchandise at issue consists of fibrous ion exchange
resin, Type TIN-100, described in U.S. Patent No. 4,700,723 of
October 20, 1987. It appears that the fibers are formed by
extrusion and that nothing is added to them after extrusion.
They are composed of 33.33 percent polyethylene and 66.67 percent
cross-linked polystyrene sulfonic acid. You state the cut fiber
is between 0.2mm and 1mm in length; the information in the patent
is that the fibers may be from 0.1mm to 200mm. The fibers in the
sample submitted are at the low end of this range.
On January 5, 1988, you requested a binding ruling of this
merchandise from our New York office. You were subsequently
assigned NYRL number 827523. In late October of that year, you
were informed that the above-mentioned ruling request had
apparently been misplaced. On November 7, 1988, you resubmitted
your ruling request; NYRL number 833803 was then assigned.
On January 27, 1989, NYRL 833803 was issued, classifying the
instant merchandise under subheading 3914.00.0000, Harmonized
Tariff Schedule of the United States Annotated (HTSUSA), as ion
exchangers based on polymers of headings 3901 to 3913, in primary
forms. On that same day, you were informed by our New York
office that your original request of January 5, 1988 (NYRL number
827523) was being forwarded to Headquarters for resolution.
On April 27, 1989, HRL 083646, was issued, classifying the
instant merchandise (when over 5mm in length) under subheading
5503.90.0000, HTSUSA, as other synthetic staple fibers, not
carded, combed, or otherwise processed for spinning. When
imported in lengths not over 5mm, classification was under
subheading 5601.30.0000, HTSUSA, as textile flock. You now
request a reconsideration of both rulings.
ISSUE:
What is the classification of fibrous ion exchange resins
under HTSUSA?
LAW AND ANALYSIS:
Heading 3914, HTSUSA, provides for ion-exchangers based on
polymers of headings 3901 to 3913, in primary forms. 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.
Chapter Note 6 to Chapter 39, HTSUSA, provides:
In headings 3901 to 3914, the expression "primary
forms" applies only to the following forms:
* * *
(b) Blocks or irregular shape, lumps, powders
(including molding powders), granules, flakes and
similar bulk forms.
Both polyethylene and polystyrene are provided for in the
requisite headings: 3901 and 3903, respectively. Therefore, the
instant merchandise is, prima facie, classifiable under heading
3914, HTSUSA.
Note 2 to Chapter 39, HTSUSA, states that:
[t]his chapter does not cover:
* * *
(l) Goods of section XI (textiles and textile
articles);
* * *
As a result, if the instant merchandise is deemed to be a good of
section XI, classification in chapter 39 is precluded.
MERCHANDISE IMPORTED IN LENGTHS UNDER FIVE MILLIMETERS
Subheading 5601.30.0000, HTSUSA, provides for, inter alia,
textile fibers, not exceeding 5mm in length (flock), and textile
dust. The Explanatory Notes to the HTSUSA constitute the offi-
cial interpretation of the tariff at the international level.
The Explanatory Note to heading 5601 provides, in pertinent
part:
"Textile flock" consists of textile fibres not
exceeding 5 mm in length (silk, wool, cotton, man-made
staple fibres, etc.). It is obtained as waste during
various finishing operations and, in particular, from
the shearing of velvets. It is also produced by cut-
ting textile tow or fibres. Textile dust is obtained
as waste, or by grinding textile fibres into a powder.
Textile dust and flock fall into this heading even if
bleached or dyed or if the fibres have been artificial-
ly curled.
It is our opinion that the instant merchandise is classifi-
able under this subheading. In the literature you have
submitted, e.g., Ion-exchange fibers, C.I. Specialty Chemicals,
Inc., it was stated that this merchandise was produced as a
fiber. It was also described as a composite fiber of sea-island
structure; the polystyrene being the sea, and the polyethylene
comprising the island. In addition, the fact that the
merchandise is cut to uniform lengths indicates that the
merchandise was extruded as tow and that the tow was cut.
Although flock may not exceed 5mm in length, there appears
to be no lower limit. See HRL 006093 of December 10, 1970
(classifying fibers 0.472mm (472 microns) long as flock); Litton,
The Modern Textile and Apparel Dictionary (4TH Ed.) (defining
flock as very short fibers, often powder-like in form). Even if
the fiber's .02 to 1mm length is considered insufficient, under
the Explanatory Note cited above, textile dust may be produced by
grinding textile fibers into a powder. Considering the
merchandise a powder would not preclude it from classification
under heading 5601, HTSUSA.
Even though the instant merchandise is not intended for
textile purposes, it can still be considered flock under heading
5601. The Explanatory Note to this heading describes other non-
textile uses for flock, stating:
These products [flock] are used for a wide variety
of purposes (e.g., for blending with other fibres and
spinning into yarns, for making imitation sudes, for
coating or decorating wallpaper, as a basis for face
powder or "make-up]). [Emphasis added.]
Accord classification of acetate tow, for use in cigarette
filters, in either Chapters 54 or 55, HTSUSA, depending on its
form.
As a result, the instant merchandise, when imported in
lengths under 5mm, is classifiable as flock or textile dust.
MERCHANDISE IMPORTED IN LENGTHS GREATER THAN FIVE MILLIMETERS
Heading 5503, HTSUSA, provides for synthetic staple fibers,
not carded, combed or otherwise processed for spinning. The
General Explanatory Note to Chapter 55 provides, in pertinent
part:
Man-made staple fibres [(synthetic or artificial)]
are usually manufactured by extrusion through spinner-
ets (jets) having a large number of holes (sometimes
several thousand); the filaments from a large number of
spinnerets (jets) are then collected in the form of a
tow. This tow may be stretched and then cut into short
lengths, either immediately or after having undergone
various processes (washing, bleaching, dying, etc.)
while in the tow form. The length into which the
fibres are cut is usually between 25 mm and 180 mm and
varies according to the particular man-made fibre
concerned, the type of yarn to be manufactured and the
nature of any other textile fibres with which they are
to be mixed.
* * *
This Chapter does not include:
(a) textile fibres, not exceeding 5 mm in length
(flock), of heading 56.01. [Emphasis added.]
* * *
In the literature you provided, you state that the
merchandise may be prepared using a composite spinneret. See
U.S. Patent No. 4,700,723, at 7. From this and other literature
provided, it is our opinion that the above-mentioned Explanatory
Note thoroughly describes the instant merchandise. Therefore,
when imported in lengths greater than 5mm, the instant
merchandise is classifiable as synthetic staple fibers.
HOLDING:
As a result of the foregoing, the ion-exchange fibers are
classified as follows: when imported in lengths over 5mm,
subheading 5503.90.0000, HTSUSA, as synthetic staple fibers, not
carded, combed or otherwise processed for spinning, other. The
applicable rate of duty is 4.9 percent ad valorem; when imported
in lengths not exceeding 5mm, subheading 5601.30.0000, HTSUSA, as
wadding of textile materials and articles thereof; textile
fibers, not exceeding 5 mm in length (flock), textile dust and
mill neps, textile flock and dust and mill neps. The applicable
rate of duty is also 4.9 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.
Pursuant to section 177.9, Customs Regulations (19 C.F.R.
177.9), the New York Ruling Letter of January 27, 1989 is hereby
revoked and the Headquarters Ruling Letter of April 28, 1989 is
hereby affirmed in conformity with the foregoing.
Sincerely,
John Durant, Director
Commercial Rulings Division