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HQ 958415



March 26, 1996
CLA-2 RR:TC:TE 958415 SK

CATEGORY: CLASSIFICATION

TARIFF NO.: 5911.40.0000

Port Director
U.S. Customs Service
110 S. Fourth Street
Minneapolis, MN 55401

RE: Decision on Application for Further Review of Protest No. 3501-95-100254;
100 percent polyester nonwoven filter material; resin bonding; used as filter in desalination, chemical and waste treatment processes; not essentially of cellulosic materials therefore not classifiable in Chapter 48, HTS; filter fabric for technical use; Note 7 to Chapter 59; 5911.40.0000; HRL 955244 (4/4/94): 954138

Dear Sir:

This is a decision on application for further review of a protest timely filed by Wm. L. Griffin & Co., on behalf of Filmtec Corporation, on July 10, 1995, against your decision regarding the classification of 100 percent polyester nonwoven filter fabric. At issue are three entries of the subject merchandise made at the port of Minneapolis on December 6, 1994, January 2, 1995, and February 15, 1995. These entries were respectively liquidated on May 5, 1995, April 21, 1995, and June 9, 1995.

FACTS:

The subject merchandise consists of rolls of nonwoven 100 percent polyester fibers. The merchandise was analyzed by a Customs laboratory. The lab report describes the merchandise as "a semi-transparent glossy sheet, ... composed of polyester fibers and a resin with the characteristics of polyethylene. The fibers have a
length of 7.9 mm and appear to be bonded by the resin to form a sheet." Counsel for the Protestant, Mr. Sal Caramagno of the law firm of Ross & Hardies, states in his memorandum in support of the Request for Further Review of Protest No. 3501-95-100254, dated August 1, 1995, that the subject material is used in sea water and brackish water desalination, chemical processing and waste treatment. A sample was submitted to this office for examination.

The subject merchandise was liquidated under subheading 5603.00.9030 Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which, under the 1995 tariff, provided for, "[N]onwovens, whether or not impregnated, coated, covered or laminated: other: other... other nonwovens, whether or not impregnated, coated or covered: thermal bonded, of staple fibers... ," dutiable at a rate of 10 percent ad valorem. Protestant submits that classification is proper under subheading 4805.40.0000, HTSUSA, which provides for, in pertinent part, filter paper and paperboard.

ISSUE:

What is the proper classification of 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 4805, HTSUSA, provides for various types of uncoated paper and paperboard. The General Explanatory Note to Chapter 48, at page 664, states:

"[P]aper consists essentially of the cellulosic fibres of the pulps of Chapter 47 felted together in sheet form. Many products, such as certain tea bag materials, consist of a mixture of these cellulose
fibres and of textile fibres (in particular man-made fibres as defined in Note 1 to Chapter 54). Where the textile fibres predominate by weight, the products are not regarded as paper and are classified as nonwovens."

As the subject merchandise consists of 100 percent polyester to which a resin has been bonded, it is not classifiable within this chapter of the tariff inasmuch as no cellulosic fibres are present.

Heading 5603, HTSUSA, provides for nonwoven fabrics. As the merchandise at issue is a nonwoven, classification is seemingly proper within this provision. EN (ij) to heading 5603, HTSUSA, at page 776, however, states that "[N]onwovens for technical uses, of heading 59.11" are excluded from this heading. As the subject merchandise is for technical use (i.e., for use in filtration processes such as desalination, chemical processes, and waste treatment), classification is excluded from heading 5603, 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:

"[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; [emphasis added]

(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. [emphasis added]

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) 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 filter fabric is used for technical purposes (i.e., for use in desalination, chemical and waste treatment processes), and this type of process is identified in note 7 to chapter 59 (i.e., straining or filtering liquids), classification is proper under subheading 5911.40.0000, HTSUSA.

HOLDING:

The subject merchandise is properly 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."

As the rate of duty under the classification indicated above is more than the liquidated rate, you should deny the protest in full. A copy of this decision should be furnished to the Protestant with the CF 19 Notice of Action to satisfy the notice requirement of Section 174.30(a), Customs Regulations.

In accordance with Section 3(A)(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the Protestant no later than 60 days from the date of this letter. Any reliquidation of these entries in accordance with this decision must be accomplished prior to mailing of the decision. 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 Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Tariff Classification Appeals

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