CLA-2: CO:R:C:T 954822 PR
District Director of Customs
#1 La Puntilla Street
San Juan, Puerto Rico 00901
RE: Request for Further Review of Protest 4909-93-100069
Dated June 22, 1993, Concerning the Classification of
Hollow Fiber Membranes (Monofilaments)
Dear Sir:
This ruling is on the protest filed against your decision in the
liquidation on May 21, 1993, of an entry covering hollow fiber
membranes. Our decision on the matter follows.
FACTS:
The imported merchandise is stated in submitted literature to be
"microporous polypropylene hollow fiber with a nominal outer
diameter of 380 microns to be used in the fabrication of blood
contact medical devices." They are not sterilized, measure 240
decitex, and are produced by extrusion in either Germany or
Belgium. The importer states that the goods have no use other
than to be used in oxygen therapy apparatus to oxygenate blood.
The merchandise is imported on spools in 10 kilometer lengths--2.3 kilometers are used in each oxygenator. The trademark name
of the goods imported from Germany is Oxyphan . A sample
component of an oxygenator containing the hollow fiber membrane
was submitted and it appears that the 2.3 km of hollow fiber
membrane is a continuous single strand.
ISSUE:
The merchandise was liquidated as entered, under the provision
for other synthetic monofilaments of 67 decitex or more, not
exceeding 1 mm in cross sectional dimension, in subheading
5404.10.8080, Harmonized Tariff Schedule of the United States
Annotated (HTSUSA). The importer states that the goods have no
textile application and should be classified either (1) as parts
of electro-medical apparatus, under subheading 9018.90.70, HTSUS;
or (2) as parts of oxygen therapy or artificial respiration
apparatus, under subheading 9019.20.00, HTSUS; or (3) as parts of
other filtering and purifying apparatus for liquids.
LAW AND ANALYSIS:
Imported goods are classifiable according to the General Rules of
Interpretation (GRI's) of the Harmonized Tariff Schedule of the
United States (HTSUSA). GRI 1 provides that for legal purposes,
classification shall first be determined according to the terms
of the headings in the tariff and according to any pertinent
section or chapter notes. It appears that GRI 1 governs the
classification of the subject merchandise in this instance.
In Customs Headquarters Ruling (HQ) 950047, dated December 3,
1991, this office ruled that the subject merchandise is properly
classifiable in subheading 5404.10.8080, HTSUSA. That ruling was
predicated on HQ 086833, dated September 7, 1990. The importer
is seeking to have these rulings revoked.
HQ 086833 involved the classification of goods described as
follows:
The fiber membranes measure approximately nine inches
in length, have no twist, and are hollow. The sample
fibers are a synthetic monofilament of 100 percent
polypropylene, measure 0.22 mm in cross section [sic].
The samples . . . have a decitex of 92 . . . the
fibers are used in the medical profession to oxygenate
blood, e.g., in artificial lungs .
In HQ 086833 the inquirer asserted that because of their special
features the hollow filaments should not be considered textile
articles. HQ 086833 examined the applicability of heading 3917,
HTSUS, which provides for tubes, pipes, and hoses, of plastic,
and determined that the merchandise which was the subject of that
ruling was properly classifiable under subheading 5404.10.2090,
HTSUSA.
The importer in the instant protest presents an issue not
previously raised or considered in HQ 086833--is the imported
merchandise classifiable as parts of apparatus. In support of
its position, the importer cites (1) Benteler Industries, Inc. v.
United States, 840 F.Supp. 912, Slip Op. 93-237 (Ct. of Int'l
Trade, 1993), (2) Medline Industries, Inc. v. United States, Slip
Op. 94-94 (Ct. of Int'l Trade, 1994), and (3) Customs proposed
revocation of New York Ruling Letter (NY) 884900, published in 28
Cust. Bull. 46 (April 20, 1994).
Benteler, supra, concerned the classification of specially
designed tubular steel sections which were imported in lengths of
6.09, 5.87, and 6.75 meters. Customs classified the merchandise
under a provision for steel pipes and tubes. The importer
claimed that it was classifiable under a provision for parts of
motor vehicles. The court went through an extensive discussion
of the specifications which the merchandise was required to meet,
its intended use, and the processing to which it was subjected,
and concluded:
. . . In light of all the evidence presented in this
case, including those facts stipulated by the parties
as to precise length, wall thickness, outer diameter,
part number, car model and color code, the court finds
that the seamless steel tubular sections are dedicated
to a singular use and that an indiscernible number of
articles could not be made from them upon entry. (at
917) That is, the sections at issue are advanced
enough in manufacture to be identified as unfinished
automotive parts.
In Jarvis Clark Co. v. United States, 733 F.2d, reh'g
denied, 739 F.2d 628 (Fed. Cir. 1984), the court of
appeals held that the "duty" of this Court of
International Trade "is to find the correct result, by
whatever procedure is best suited to the case at hand."
733 F.2d at 878 (italics added)
Medline, supra, involved the issue of whether "drawsheets" were
classifiable bed sheets under a provision for other bed linen.
The court noted that the "drawsheets" differed from bed sheets in
both dimensions and usage. Accordingly, the court held that the
goods were not classifiable as bed linen. The importer
analogizes that holding to the instant merchandise because the
fiber membranes are outside the scope of the common meaning of a
"monofilament".
Customs' proposed revocation of New York Ruling Letter (NY)
884900, involving fishing line imported on spools, was cited
because the fiber membranes are imported cut to length (10 km),
imported on a spool, and packaged and labelled to clearly
identify it as a part of an oxygenator.
Benteler, and a host of other cases dealing in this area, were
decided under the TSUSA. The HTSUSA, which is an international
based tariff, superceded the TSUSA on January 1, 1989. The law
governing unfinished articles under the TSUSA is not the same as
that under the HTSUSA. General Headnote 10(h), TSUS, merely
states that a tariff provision covers an article whether finished
or not finished. The TSUSA left up to the court and Customs to
set the rules for deciding if an article had been sufficiently
processed to be classified as a finished article. On the other
hand, GRI 2(a), HTSUSA, though somewhat similar, contains the
proviso that for an incomplete or unfinished article, the
unfinished or incomplete article must have the "essential
character" of the complete or finished article.
The Customs Service has recently ruled in Customs Headquarters
Ruling (HQ) 956965, that billiard table fabric was classifiable
as fabric and not as parts of billiard tables. HQ 956965
involved the same basic issue as here presented--whether the
goods in question were classifiable as material or as parts of
the article into which they were intended to be incorporated. In
that ruling it was stated:
It should be noted that judicial authority in this area
was decided under the prior tariff, the Tariff
Schedules of the United States (TSUS). Therefore, these
cases are not dispositive of the outcome under the
HTSUS.
It is the view of the Customs Service that for textile materials,
whether fabric, yarn, fibers or filaments, to be classified under
the HTSUS as unfinished articles pursuant to GRI 2(a), the
identity of the finished articles to be made from those materials
must be fixed with certainty. No matter how dedicated to a
particular use a material is, it does not have the essential
character of a finished article (and remains mere material) if
the dimensions of the article to be made from that material are
not fixed and certain.
In the instant circumstance, the fiber membranes are imported in
10 kilometer lengths and each oxygenator contains 2.3 kilometers
of the imported membrane. Obviously, each length of membrane can
be used to supply from one to four oxygenators, with some
membrane left over. Accordingly, the dimensions, and, therefore,
the identity, of the article to be made from the imported goods
is neither fixed nor certain and those goods may not be
classified as unfinished articles.
The importer's assertions concerning the proposed revocation of
NY 884900 are not pertinent. Although heading 5404 is located in
what is generally regarded as the textile portion of the HTSUSA,
there is no legal requirement that the goods classifiable in that
section be used for textile purposes. In this regard, GRI 1,
HTSUSA, specifically states, in pertinent part:
The table of contents, alphabetical index, and titles
of sections, chapters and sub-chapters are provided for
ease of reference only; for classification purposes,
classification shall be determined according to the
terms of the headings and any relative section or
chapter notes . . .
Note 1 to Chapter 54, HTSUSA, wherein subheading 5404.10.8080 is
located, states that the term "man-made fibers" means, with
regard to synthetic fibers, "staple fibers and filaments of
organic polymers produced by polymerization of organic monomers,
such as polyamides, polyesters, polyurethanes or polyvinyl
derivatives." (at pg. 54-1) There is no mention made of textile
usage or textile identity. As if to emphasize this omission,
Note 1 also states, "The terms 'man-made', 'synthetic' and
'artificial' shall have the same meanings when used in relation
to 'textile materials'."
In addition, The Harmonized Commodity Description and Coding
System, Explanatory Notes (EN), which is the official
interpretation of the HTSUSA at the international level (for the
4 digit headings and the 6 digit subheadings), state, in
describing the goods covered by heading 5404:
All these products are generally in long lengths, but
remain classified here even if cut into short lengths
and whether or not put up for retail sale, They are
used according to their different characteristics in
the manufacture of brushes, sports rackets, fishing
lines, surgical sutures . . .
(at pg. 754)
The illustrations listed in the quoted portion of the EN are
clearly not within the common conception of textile articles.
While the EN are not binding on the United States, they
constitute the Customs Cooperation Council's (CCC) official
interpretation of the Harmonized System and should be consulted
for guidance. (Cong. Record, 4/20/88, at page H2021) The court,
in Mita Copystar Corp. v. United States, Ct. Int'l Trade, Slip
Op. 93-76 (May 20, 1993), stated that the purpose of the ENs "is
to significantly clarify the reach of HTSUS subheadings, and to
offer guidance in interpreting its subheadings."
On the basis of the above, we conclude that the fiber membranes
were properly classified in subheading 5404.10.8080.
HOLDING:
The protest should be denied in full.
In accordance with section 3A(11)(b) of Customs Directive
Number 099 3550-065, dated August 4, 1993, Subject: Revised
Protest Directive, this decision should be attached to the
Customs Form 19, Notice of Action, and furnished to the
protestant no later than 60 days from the date of this letter.
Sixty days from the date of the decision, the Office of
Regulations and Rulings will take steps to make the decision
available to Customs personnel via the Customs Ruling Module in
ACS and to the public via the Diskette Subscription Service,
Freedom of Information Act, and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division