CLA-2 RR:CR:TE 962967 mbg
Mr. John Porter
Port Director
U.S. Customs Service
4477 Woodson Road
Suite 200
St. Louis, MO 63134
RE: Decision on Application for Further Review of Protest No.
4503-99-100015; classification of textile gasket for technical use
Dear Mr. Porter:
This is a decision on an application for further review of a protest timely filed by Advanced Performance Materials. Attorneys Stanley J. Marcuss and Bryan Cave, LLP of Washington D.C filed Customs Form 19 (PROTEST), dated July 6, 1999, against your decision regarding the classification under the Harmonized Tariff Schedule of the United States (HTSUS) for a textile gasket for technical use.
FACTS:
The Protestant disagrees with Customs classification of the subject merchandise in heading 5911, HTSUS, in the provision for textile articles for technical use. It is the Protestant’s opinion that the correct classification for the subject merchandise is as parts and accessories of machinery under heading 8473, HTSUS.
The subject merchandise consists of electromagnetic interference (“EMI”) shielding gaskets used in automatic data processing machines and similar computer and telecommunications equipment. The gaskets are manufactured in Great Britain and marketed under the brand name FOAMTITE(. The Protestant asserts the gaskets are constructed of foam plus metal particles enmeshed in a fabric cover. They are specifically designed and custom made for computers to provide corrosion resistant, galvanically compatible electromagnetic interference shielding for a computer’s electronic components. The gaskets are attached to the computer by means of an adhesive or a plastic clip.
The foam, through a proprietary thermoplastic elastomer, is based on a urethane technology, and thus considered to be a plastic foam. Protestant states that the gasket cover consists of nickel-over-copper metal embedded in fabric as a holding medium and further states the foam core and the metallized sheath are permanently bonded to each other through a proprietary production process. The appearance of the subject merchandise is such that from observation the fabric completely covers or encases the foam component.
The protestant provides neither details on how the metal is applied to the fabric nor on the type of fabric used. It appears that both woven and nonwoven textile fabrics of man-made fibers are used in making the gaskets. Furthermore, upon separating the fabric from the foam, it appears that the metal deposit or coating appears on both sides of the textile fabric.
The protestant asserts that the ratio of foam to fabric whether by weight or value varies according to the gasket’s shape. The gaskets can be either square, rectangular, flat, “D-shaped,” or contain a “C-fold” or knife edge depending upon the shape or configuration of the surfaces they are to join. Each gasket is manufactured to the customer’s specification to fit a given machine prior to importation.
ISSUE:
What is the proper classification for the subject merchandise under the HTSUSA?
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 of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied. The Explanatory Notes (“EN”) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI.
There is no dispute that the subject merchandise is used for automatic data processing machines. The Protestant asserts that the subject merchandise is properly classified in heading 8473, HTSUS as a part or accessory to an automatic data processing machine. The legal brief submitted with the protest alleges that such classification is proper based on analysis under GRI 3 in which the Protestant claims that the metallic and foam components provide the essential character to the subject gaskets. Customs disagrees with this stated proposition and believes that classification of the subject merchandise is proper according to GRI 1 based on the provisions and notes of the Harmonized Tariff Schedule of the United States Annotated.
The Section XVI Notes (which cover heading 8473) exclude from inclusion within the section “articles of textile material for technical uses” and direct classification determinations of such merchandise directly to heading 5911, HTSUSA.
Heading 5911, HTSUSA, provides for textile products and articles for technical uses so long as they are specified in Note 7 to Chapter 59. Note 7 to Chapter 59 reads:
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:
(i) 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, including narrow fabrics made of velvet impregnated with rubber, for covering weaving spindles (weaving beams);
(ii) Bolting cloth;
(iii) Straining cloth of a kind used in oil presses or the like, of textile material or human hair;
(iv) Flat woven textile fabrics with multiple warp or weft, whether or not felted, impregnated or coated, of a kind used in machinery or for other technical purposes;
(v) Textile fabric reinforced with metal, of a kind used for technical purposes;
(vi) Cords, braids and the like, whether or not coated, impregnated or reinforced with metal, of a kind used in industry as packing or lubricating materials;
(b) Textile articles (other than those of headings 5908 to 5910) of a kind used for technical purposes (for example, textile fabrics and felts, endless or fitted with linking devices, of a kind used in papermaking or similar machines (for example, for pulp or asbestos-cement), gaskets, washers, polishing discs and other machinery parts).
(emphasis added.)
The EN to heading 5911, HTSUS state that “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.”
Furthermore, Section B to the EN for heading 5911 specifically addresses textile articles of a kind used for technical purposes. The EN state in pertinent part:
All textile articles of a kind used for technical purposes (other than those of headings 59.08 to 59.10) are classified in this heading and not elsewhere in Section XI (see Note 7(b) to the Chapter)[.]
The EN further state that “the textile articles of this heading may incorporate accessories in other material provided the articles remain essentially articles of textile.” The foam and metal are applied to the textile fabric and the fabric serves as the unifying component of the merchandise which then shields the computer’s electronic components.
As such, the foam and metal embedded in the fabric do not preclude classification of the subject merchandise within heading 5911, HTSUSA.
Therefore, the subject merchandise is eo nomine provided for in heading 5911, HTSUSA.
HOLDING:
The subject merchandise is classified in subheading 5911.90.0080, HTSUSA as “Textile products and articles, for technical uses, specified in note 7 to this chapter: Other: Other.” The general column one duty rate was 6 percent ad valorem at time of entry.
The protest should be denied. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division