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HQ 958248



June 4, 1996
CLA-2 RR:TC:TE 958248 SK

CATEGORY: CLASSIFICATION

TARIFF NO.: 5911.40.0000

Patrick K. McCooey
Manager, Customs Clearance
Mitsubishi International Corporation
520 Madison Avenue
New York, N.Y. 10022

RE: Revocation of NYRL's [840769, 840779, 840780,840781, 840782] (5/22/89) and 865248 (7/30/91); wet-laid nonwoven fabric; filter fabric; Note 7 to Chapter 59; 5911.40.0000; HRL 958415 (3/26/96); 955244 (4/4/94): 954138 (6/15/93); 950167 (3/13/92).

Dear Mr. McCooey:

On May 22, 1989, Customs issued to your company New York Ruling Letter (NYRL) [840769, 840779, 840780, 840781, 840782]. On July 30, 1991, Customs issued you NYRL 865248. In all of these rulings, Customs classified wet-laid nonwoven fabric under heading 5603, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). On July 19, 1995, you petitioned this office for a review of these rulings. Samples of the subject merchandise were submitted for our examination. Upon review, the classification of this merchandise as a nonwoven under heading 5603, HTSUSA, is deemed to be incorrect. Our analysis follows.

FACTS:

In your submission to this office, you have requested confidential treatment in accordance with 19 CFR 177.2(b)(7) concerning the end use of the subject nonwoven textile material as well as the manufacturing processes involved in the manufacture of this material. We note, however, that the manufacturing processes for which confidential treatment is sought were explicitly described in NYRL 865248. As this information has already been published, we will not treat it as confidential for
the purposes of this ruling. Moreover, this office was not provided definitive information regarding the end use of this merchandise, nor was this information provided in your earlier requests for rulings.

The material the subject of the six rulings cited supra, is identified as "Hirose High Technology Paper Products" and consists of a wet-laid nonwoven fabric produced by suspending and dispersing short cut polyester fibers in water and depositing these fibers onto a wire cylinder screen that forms the nonwoven fiber sheet. The fiber sheet is then drawn through rollers and dryers and finally taken up on a winder. The material is made from 100 percent polyester fibers and is available in widths ranging from 950 to 1300 mm, lengths ranging from 1000 to 2000 meters, and weights ranging from 8 to 150 grams per square meter. None of the rulings indicated how this product will be used. The sample book provided to this office features sample fabrics in weights ranging from 8.1 to103.2 grams per square meter.

In your submission to this office, you state:

"[A]fter importation and customs clearance, MIC sells the fabric, as is, to its US customer. We do not use this fabric for ourselves. Our customer uses the fabric for its own confidential purposes and they have declined to share this use information with us beyond a most general verbal explanation."

Later in your submission, you state that it is your understanding that after importation the subject merchandise undergoes a coating or lamination process and is then used for micro filtration.

In NYRL [840769, 840779, 840780, 840781, 840782], the subject merchandise was classified under subheading 5603.00.9040, HTSUSA, which under the 1989 tariff provided for nonwovens, whether or not impregnated, coated or covered. In NYRL 865248, the subject merchandise was classified under subheading 5603.00.9090, HTSUSA, which under the 1991 tariff provided for nonwovens, whether or not impregnated, coated, covered or laminated, of staple fibers.

ISSUE:

What is the proper classification for the subject merchandise?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is governed by the General

Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI's, applied in order.

The Explanatory Notes (EN) to the HTSUSA constitute the official interpretation of the tariff at the international level. While not legally binding, they do represent the considered views of classification experts of the Harmonized System Committee. It has therefore been the practice of the Customs Service to follow, whenever possible, the terms of the EN when interpreting the HTSUSA.

Heading 5603, HTSUSA, provides for nonwoven fabrics. As the merchandise at issue is a nonwoven, classification is seemingly proper within this provision. The Explanatory Note (EN) to heading 5603, HTSUSA, at page 776, however, states that "[N]onwovens for technical uses, of heading 59.11" are excluded from this heading.

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:

"[H]eading 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 other technical purposes;

(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 fabric with multiple warp or weft, whether or not felted, impregnated or coated, of a kind used in machinery or 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 paper-making or similar machines (for example, for pulp or asbestos-cement), gaskets, polishing discs and other machinery parts).

The EN to heading 5911, HTSUSA, at page 822, describe "straining cloths" as:

... (e.g., woven filter fabrics and [sic] needled fabrics), whether or not impregnated, of a kind used in oil presses or for similar filtering purposes (e.g., in sugar refineries or breweries) and for gas cleaning or similar technical applications in industrial dust collecting systems. The heading includes oil filtering cloth, certain thick heavy fabrics of wool or of other animal hair, and certain unbleached fabrics of synthetic fibers (e.g., nylon) thinner than the foregoing but of a close weave and having char- acteristic rigidity. It also includes similar straining cloth of human hair.

Heading 5911, HTSUSA, is not limited to woven fabrics for technical use. The EN to heading 5603, HTSUSA, cited supra, specifically state that nonwovens for technical use are classifiable in heading 5911, HTSUSA, and are excluded from heading 5603, HTSUSA.

Customs has classified various types of filter fabric, similar to the instant merchandise, as technical use fabric. In Headquarters Ruling Letter (HRL) 958415, dated March 26, 1996, a nonwoven filter material made of 100 percent polyester, used in desalination, chemical and waste treatment filtration operations, was classified as technical use fabric of subheading 5911.40.000, HTSUSA.
In HRL 955244, dated April 4, 1994, Customs classified nonwoven polyester filter mat used as an air filter medium as a technical use fabric under subheading 5911.40.0000, HTSUSA. As that merchandise was to be used in spray paint booth apparatus for use in filtration, classification was deemed proper as a technical use fabric. Similarly, in HRL 954138, dated June 15, 1993, Customs classified filtrete air
filter media made of a spunbonded nonwoven component and batting material as a technical use fabric of subheading 5911.40.0000, HTSUSA. See also HRL 950167, dated March 13, 1992, where Customs determined that a diffusion filter fabric made of 100 percent polyester fibermat was classifiable as a technical use fabric.

As the subject merchandise is for technical use (i.e., for use in micro filtration), and this type of process is identified in note 7 to chapter 59 (i.e., straining or filtering liquids), classification is excluded from heading 5603, HTSUSA, and is proper within subheading 5911.40.0000, HTSUSA.

HOLDING:

NYRL's [840769, 840779, 840780, 840781, 840782] and 865248 are revoked.

The merchandise the subject of these rulings is classifiable under subheading 5911.40.0000, HTSUSA, which provides for "[T]extile products and articles, for technical uses, specified in note 7 to Chapter 59: straining cloth of a kind used in oil presses or the like, including that of human hair," dutiable at a rate of 12 percent ad valorem.

Due to the nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact a local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director
Tariff Classification Appeals
Division

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