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HQ 959276




January 30, 1998

CLA-2 RR:CR:TE 959276 RH

CATEGORY: CLASSIFICATION

TARIFF NO.: 5603.13.0090

Karen Bysiewicz, Esq.
Yelena Slepak, Esq.
Coudert Brothers
1114 Avenue of the Americas
New York, NY 10036-7703

RE: Request for reconsideration of New York Ruling Letter A80354; heading 5603; heading 5911; GRI 2(a); material vs. article

Dear Ms. Bysiewicz and Ms.Slepak:

This is in reply to your letter dated May 23, 1996, on behalf of Ahlstrom Filtration, Inc., requesting reconsideration of New York Ruling Letter (NY) A80354, dated March 6, 1996.

You provided a sample of the merchandise to aid us in our determination.

Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation of NY A80354 was published on December 24, 1997, in the CUSTOMS BULLETIN, Volume 31, Number 52.

FACTS:

A description of the merchandise set out in NY A80354 reads:

The subject merchandise, consists of wet laid nonwoven filtration media composed of unspecified synthetic man-made fibers. You state that this material is produced on a paper making machine and will be imported in rolls measuring 43 inches wide. The instant sample measures about 1/16" in thickness and weighs 79g/mý. You indicate that after importation, these materials will be calendared by Ahlstrom Filtration Corporation before being shipped to their customers who will in turn apply various coatings which will make this material suitable for use in filtration.

Ahlstrom's customers sell the calendered, coated and treated product for use in filtration applications, such as desalination of water, purification of water for use in pharmaceutical products, etc.

In NY A80354, Customs classified your client's product under subheading 5911.40.0000 of the Harmonized Tariff Schedule of the Untied States Annotated (HTSUSA), as a straining cloth or the like. You maintain that the merchandise is classifiable under subheading 5603.13.0090, HTSUSA, as a nonwoven.

ISSUE:

Is the article under consideration classifiable under heading 5603, HTSUSA, as a nonwoven, or under heading 5911, HTSUSA, as a textile product for technical uses?

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 and any relative section or chapter notes. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRI's will be applied, in the order of their appearance.

Two provisions are at issue in this case. Subheading 5603.13.0090, HTSUSA, provides for "Nonwovens, whether or not impregnated, coated, covered or laminated: Of man-made filaments: Weighing more than 70 g/mý but not more than 150 g/mý: Other." The other provision, subheading 5911.40.0000, HTSUSA, encompasses "Textile products and articles, for technical uses, specified in note 7 to this chapter: Straining cloth of a kind used in oil presses or the like, including that of human hair."

The EN to the Harmonized Commodity Description and Coding System (Harmonized System) constitute the official interpretation of the scope and content of the nomenclature at the international level. They represent the considered views of classification experts of the Harmonized System Committee. While not treated as dispositive, the EN are to be given considerable weight in Customs interpretation of the HTSUSA. It has, therefore, been the practice of the Customs Service to consult the terms of the EN when interpreting the HTSUSA.

The EN to heading 5603 provide in pertinent part that:

Except where they are covered more specifically by other headings in the Nomenclature, the heading covers nonwovens in the piece, cut to length or simply cut to rectangular (including square) shape from larger pieces without other working, whether or not presented folded or put up in packings (e.g., for retail sale). These include: facing webs (overlay) for incorporation in laminated plastics; top-sheets for the manufacture of disposable baby napkins (diapers) or sanitary towels; fabrics for the manufacture of protective clothing or garment linings; sheets for filtering liquids or air, for use as stuffing materials, for sound insulation, for filtration or separation in road building or other civil engineering works; substrates for manufacturing bituminous roofing fabrics; primary or secondary backing for tufted carpets, etc.

Additionally, the EN for heading 5603 list exclusions which include, among other things, "Nonwovens for technical uses, of heading 59.11."

You contend that the polyester fabric cannot be classified in heading 5911 because, in its imported condition, it is incapable of technical use and is not one of the materials provided for in Note 7 to Chapter 59. You further assert that no known commercial applications of Ahlstrom's imported product exists in the filtration industry. In its uncalendered state, the imported product would disintegrate under the pressure of liquid passing through it, unless the pressure is so low that it would be economically impractical to use the product due to the extremely slow speed of filtration and the strong likelihood of disintegration. Moreover, it is economically impractical to use the imported product for filtration purposes because it can only retain large particles which defeats the purpose of using it as a filter.

Additionally, you state that the product, as imported, possesses loose fiber structure and lacks tensile strength, solvent resistance, air permeability and adequate pore structure to be used for filtration or other technical application. After importation, your client calenders the product, which consists of heating the fabric in order to change its chemical structure. The calendering process "dramatically" increases the product's tensile strength and solvent resistant, while reducing air permeability and pore size. You provide a chart illustrating the physical differences between the product as imported and after calendering.

After calendering, the product is sold to Ahlstrom's customers who process it by applying coatings and treatments which render it capable of micro-filtration. You state that not only is calendering a prerequisite to coating and other treatments of the product because it eliminates loose fibers and increases solvent resistance and tensile strength of the fabric, it is technically impossible to apply coating or other treatments to the product as imported.

Finally, you state that depending on how the product is calendered, it can also be used in non-filtration applications such as a special reinforcing layer in shoes, briefcases, totes or handbags, or as a layer of support in clothing or in hand warmers or as a VCR head cleaning tape.

In NY A80354, we held that the product in question was, in effect, an unfinished filter cloth in its condition as imported and was, therefore, classifiable as such under the tenets of GRI 2(a). That rule reads in part that "any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as presented, the incomplete or unfinished article has the essential character of the complete or finished article."

In this case, the merchandise is not an incomplete or unfinished "article" under GRI 2(a) at the time of importation because it does not have the essential character of a textile product for technical uses. It is a nonwoven material (imported in rolls) and may be further processed for use in a variety of articles such as those mentioned on the preceding page and in the EN to heading 5603. Since the merchandise is a "material" rather than an "article," GRI 2(a) is inapplicable. Accordingly, we agree that the merchandise in its imported condition is classifiable under heading 5603.

HOLDING:

The merchandise described above is classifiable under subheading 5603.13.0090, HTSUSA, which provides for "Nonwovens, whether or not impregnated, coated, covered or laminated: Of man-made filaments: Weighing more than 70 g/mý but not more than 150 g/mý: Other." It is dutiable at the general column rate at 2.5 percent ad valorem, and the textile category is 223.

NY A80354 is hereby revoked. In accordance with 19 U.S.C. 1625(c)(1), this ruling will become effective 60 days after its publication in the CUSTOMS BULLETIN. Publication of rulings or decisions pursuant to 19 U.S.C. 1625(c)(1) does not constitute a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations (19 CFR 177.10(c)(1)).

Sincerely,
John Durant, Director
Commercial Rulings Division

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