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HQ 964227




April 9, 2001

CLA-2 RR:CR:TE 964227 mbg

CATEGORY : Classification

TARIFF NO.: 4823.90.1000

Mr. John F. Jager
Corporate Customs Compliance Manager
Toyota Tsusho America, Inc.
702 Triport Road
Georgetown, KY 40324

RE: Request for classification of non-woven automotive filter paper

Dear Mr. Jager:

This is in response to your request, on behalf of Toyota Tsusho America, Inc., dated March 30, 2000, for classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of the subject automotive filter paper. The merchandise is properly classified in subheading 4823.90.1000, HTSUS, which provides for other articles of paper pulp for the reasons set forth below.

FACTS:

The subject merchandise is referred to as “filter paper” which is used in the manufacture of automotive fuel filters. The non-woven merchandise is imported from Japan in rolls of 1600 meters in length by 48.2 millimeters in width.

The U.S. Customs Laboratory has determined the fiber content of the sample provided to be:

Cellulose 39.05 percent
Polyethylene 35.98 percent
Glass 14.91 percent
Carbon 10.06 percent

The above analysis varies slightly from the cellulosic fiber weight which you reported to Customs but the variation is not significant enough to upset the stated balance provided to us.

ISSUE:

What is the proper classification for the subject merchandise under the HTSUS?

LAW AND ANALYSIS:

Classification of goods under the HTSUS is governed by the General Rules of Interpretation (“GRIs”). GRI 1 provides that classification shall be determined according to the terms of the heading 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 Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80.

The Dictionary Of Paper defines filter paper as:

A porous, unsized paper for filtering solid particles from liquids or gases. It is made from cotton fiber or chemical wood pulp or both, in basis weights from 15 to 200 pounds (20 X 20 – 500). Important properties are uniformity of formation, moderate strength when wet, high retention of particulate matter, high filtering rate and, usually, high chemical purity. For most purposes, the pore size is carefully controlled, since this determines the speed of filtration and the size of the particles removed from the fluid (liquid or gas).

Dictionary of Paper, American Paper Institute 175 (4th ed. 1980).

Filter paper is eo nomine provided for in subheading 4823.20, HTSUS, and would typically include merchandise of the subject form and size, however, dispute over the classification of the subject merchandise arises due to the fiber content of the constituent materials. In the subject filter paper, a majority of the fibers used in the chemical composition are not of the type of cellulosic fibers which are provided for within the HTSUS definition of “paper” and therefore, classification of the subject filter paper as an eo nomine “paper” product of Chapter 48 would be erroneous.

Specifically, the classification issue hinges on the definition of “paper” as provided for within the general Explanatory Notes to Chapter 48, HTSUS, which state:

Paper consists essentially of the cellulosic fibers 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 fibers and of textile fibers (in particular man-made fibers as defined in Note 1 to Chapter 54).

(emphasis added.) See Explanatory Notes, Section X, Chapter 48, General, p. 733.

The Explanatory Notes to Chapter 47 further elaborate on “pulp” and state:

The pulp of this Chapter consists essentially of cellulose fibers obtained from various vegetable materials, or from waste textiles of vegetable origin.

The most important pulp in the international trade is wood pulp, termed “mechanical wood pulp”, “chemical wood pulp” or “semi-chemical wood pulp”, according to its method of preparation.

Other materials used in making pulp include:

(1) Cotton linters.

(2) Recovered (waste and scrap) paper or paperboard.

(3) Rags (particularly cotton, linen or hemp) and other textile wastes such as old ropes.

(4) Straw, esparto, flax, ramie, jute, hemp, sisal, bagasse, bamboo and various other grasses and reeds.

See Explanatory Notes, Section X, Chapter 47, General, p. 723.

The subject merchandise has a total fiber content of 60.95 percent (35.98 percent polyethylene, 14.91 percent glass and 10.06 percent carbon) which are not the type of fibers derived from the pulps of Chapter 47 and therefore cannot be used for classification purposes in determining a “paper” product of subheading 4823.20, HTSUS.

Moreover, the fact that the filter paper is made like paper and is used in areas that paper is used in, while informative, is not dispositive. Customs does not believe that a product which is over 60% by weight of materials other than cellulosic fibers can be said to be essentially of such fibers. Accordingly, based on GRI 1, it is not properly classified within this heading and we find no other heading of the nomenclature eligible for GRI 1 classification.

GRI 2(b) states that any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances. Any reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such materials or substance. The classification of goods consisting of more than one material or substance shall be according to the principles of GRI 3.

The automotive filter paper is a composite good; that is, it is composed of two or more constituent ingredients which combine to produce the whole. Since the subject merchandise cannot be classified according to GRI 1 or GRI 2(b), the GRIs dictate that classification of a product such as this one is made by determining which of the constituent materials provides the essential character of the item. GRI 3(b) states:

When by application of Rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be affected as follows:

(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

Furthermore, Explanatory Note VIII to GRI 3(b), page 4, states:

The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

While the subject merchandise is precluded from classification as a “paper” product in subheading 4823.20, HTSUS, Customs believes that this type of product is reasonably classified in Chapter 48, HTS, which provides for the overall classification of paper and paperboard as well as articles of paper pulp. The subject merchandise consists of more paper pulp than any other single material (39.05 percent cellulose) and cellulose is specifically provided for within the ENs to Chapter 47. Moreover, the paper pulp, by its nature and role, provides the essential material in the filter paper required for the actual filtering process. Therefore, Customs believes the automotive filter paper is properly classified as an article of pulp for classification purposes under the HTSUS, at GRI 3(b).

HOLDING:

The subject automotive filter paper is classified in subheading 4823.90.1000, HTSUS, which provides for “Other paper, paperboard, cellulose wadding and webs of cellulose fibers, cut to size or shape; other articles of paper pulp, paper, paperboard, cellulose wadding or webs of cellulose fibers: Other: Of paper pulp.” The general column one rate of duty is free.

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

Sincerely,

John Durant, Director

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