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HQ 965892




January 7, 2003

CLA-2 RR:CR:TE 965892 jsj

CATEGORY: CLASSIFICATION

TARIFF NO.: 6307.90.9889

Mr. Sidney N. Weiss
675 Third Avenue
New York, New York 10017

RE: Paint Filters / Paint Strainers; 19 U.S.C. 1516; 19 C.F.R. Part 175; Domestic Interested Party; General Rule of Interpretation 3 (c); Heading 4823, HTSUS; Heading 6307, HTSUS; Subheading 6307.90.9889, HTSUSA.

Dear Mr. Weiss:

The purpose of this correspondence is to respond to your request of September 23, 2002. The correspondence in issue requested, pursuant to 19 U.S.C. 1516 (West 1999), information concerning the classification of designated imported merchandise of a class or kind manufactured domestically by your client, Louis M. Gerson, Co., Inc. (Gerson). Gerson, a domestic interested party, manufactures merchandise identified as “paint filters” or “paint strainers.”

This response is being issued subsequent to the following: (1) A review of your submissions dated September 23, 2002, December 4, 2002, and December 12, 2002; (2) An examination of the merchandise manufactured domestically by Gerson; and (3) Telephone conferences conducted on November 29, 2002, December 2, 2002, and December 12, 2002, between you and a member of my staff.

FACTS

The designated imported merchandise in issue, identified as paint filters or paint strainers, is of a class or kind of merchandise manufactured domestically by Gerson. The paint filters have a paper component and a textile component. The body of the filter is made of a non-permeable paper and the filtering / straining element is made of a woven textile fabric.

The filter has a conical shape and is approximately six (6) inches in diameter and five (5) inches in depth. The tip of the cone, measuring approximately one-fourth (1/4) of an inch, and two sections immediately above the tip on opposite sides of the cone, measuring approximately two and one-half (2 ½) inches in width and one and one-half (1 ½) inches in height, have been cut out of the paper body. The cutout sections have been replaced with a woven textile fabric through which the paint is filtered.

The filters are used in the automotive and body shop industries to filter automotive paint prior to its application to a vehicle by means of a paint sprayer. Paint is poured into the conical filter and then, subsequent to being filtered, flows into a paint gun.

ISSUE

What is the classification, pursuant to the Harmonized Tariff Schedule of the United States Annotated, of the above-described designated imported paint filters / paint strainers ?

LAW AND ANALYSIS

Section 1516 (a)(1) of Title 19 of the United States Code, 19 U.S.C. 1516 (a)(1), and Part 175, Subpart A, of Title 19 of the Code of Federal Regulations, 19 C.F.R. 175.1 et seq., provides the means by which domestic interested parties may obtain from the Customs Service the classification and rate of duty imposed on designated imported merchandise of a class or kind that the interested party manufactures, produces or sells at wholesale. Gerson qualifies as a “domestic interested party” pursuant to 19 C.F.R. 175.3 (a) and has complied with the requirements of 19 C.F.R. 175.2 addressing the content of a Section 1516 request.

The federal agency responsible for initially interpreting and applying the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is the U.S. Customs Service.

See 19 U.S.C. 1500 (West 1999) (providing that the Customs Service is responsible for fixing the final appraisement, classification and amount of duty to be paid); See also Joint Explanatory Statement of the Committee of Conference, H.R. Conf. Rep. No. 100-576, at 549 (1988) reprinted in 1988 U.S. Code Cong. and Adm. News 1547, 1582 [hereinafter Joint Explanatory Statement]. The Customs Service, in accordance with its legislative mandate, classifies imported merchandise pursuant to the General Rules of Interpretation (GRI) and the Additional U.S. Rules of Interpretation. See 19 U.S. C. 1202 (West 1999); See generally, What Every Member of The Trade Community Should Know About: Tariff Classification, an Informed Compliance Publication of the Customs Service available on the World Wide Web site of the Customs Service at www.customs.gov, search “Importing & Exporting” and then “U.S. Customs Informed Compliance Publications.”

General Rule of Interpretation 1 provides, in part, that classification decisions are to be “determined according to the terms of the headings and any relative section or chapter notes.” General Rule of Interpretation 1. General Rule of Interpretation 1 further states that merchandise which cannot be classified in accordance with the dictates of GRI 1 should be classified pursuant to the other General Rules of Interpretation, provided the HTSUSA chapter headings or notes do not require otherwise. According to the Explanatory Notes (EN), the phrase in GRI 1, “provided such headings or notes do not otherwise require,” is intended to “make it quite clear that the terms of the headings and any relative Section or Chapter Notes are paramount.” General Rules for the Interpretation of the Harmonized System, Rule 1, Explanatory Note (V).

The Explanatory Notes constitute the official interpretation of the Harmonized System at the international level. See Joint Explanatory Statement supra note 1, at 549. The Explanatory Notes, although neither legally binding nor dispositive of classification issues, do provide commentary on the scope of each heading of the HTSUS. The EN’s are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989); Lonza, Inc. v. United States, 46 F. 3rd 1098, 1109 (Fed. Cir. 1995).

Commencing classification of the designated imported paint filter / paint strainer, in accordance with the dictates of GRI 1, the Customs Service examined the headings of the HTSUSA. Customs review of the headings of the tariff schedule confirms that the article in issue is not provided for eo nomine, that is by name, in any heading. Customs must, therefore, look to General Rule of Interpretation 2 to classify the instant merchandise.

A review of GRI 2 leads the Customs Service to the conclusion that its provisions will not prove beneficial in classifying the paint filter. The merchandise under consideration in this ruling letter does not constitute incomplete, unfinished, unassembled or disassembled articles that are addressed in GRI 2 (a). The paint filter is composed of paper and woven textile fabric, and is, in accordance with GRI 2(b), “goods consisting of more than one material.” Goods consisting of more than one material that cannot be classified pursuant to GRI 1 or 2 are to be classified according to GRI 3.

An examination of the dictates of GRI 3 is appropriate because the paint filter is prima facie classifiable under two or more headings: the paper component, in heading 4823, HTSUS, and the textile component in heading 6307, HTSUS. Heading 4823, HTSUS, 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.” Heading 6307, HTSUS, provides for “Other made up articles, including dress patterns.” The textile component of the paint filters comports with the definition of “made up” as set forth in Section XI, Note 7.

General Rule of Interpretation 3(a) provides that merchandise should be classified according to the heading that affords the most specific description, unless the multiple headings under consideration refer to only part of the materials or substances contained in goods that are mixed or composite, or to only part of items in a set put up for retail sale. Since the multiple headings applicable to the paint filter each refer to only part of the final article and the filter is a composite good, the headings are regarded as equally specific and recourse must then be had to GRI 3 (b).

General Rule of Interpretation 3(b) provides, in part, that “composite goodsmade up of different componentswhich cannot be classified by reference to 3(a), shall be classified as if they consisted of the component which gives them their essential character, insofar as this criterion is applicable.” The GRI’s do not provide a definition for the phrase “essential character,” but the EN’s suggest an illustrative list of factors to consider. Explanatory Note Rule 3(b) (VIII) states the factors that may be relevant to the determination of “essential character” of a composite good. General Rules for the Interpretation of the Harmonized System, Rule 3 (b) Explanatory Note (VIII). The factors, which “will vary between different kinds of goods,” may include the nature of the material or component, its bulk, its quantity, its weight, its value or the role played by the constituent material in relation to the use of the good. Id.

It is Customs conclusion, subsequent to reviewing GRI 3 (b), the related Explanatory Notes and the instant designated imported merchandise that the paint filter is not classifiable pursuant to GRI 3 (b). Relying on a determination previously made, Customs maintains:

[t]he paper in this case forms a cone or funnel which directs the paint through the textile mesh at the bottom. The actual filtering of the paint is accomplished by the mesh portion of the device. Therefore, the essential character of the paint strainer cannot be ascertained as the paper and the fabric are equally important in the functioning of the device. HQ 555427 (Dec. 13, 1989).

The Customs Service must now review General Rule of Interpretation 3 (c).

General Rule of Interpretation 3 (c) provides “ [w]hen goods cannot be classified by reference to 3 (a) or 3 (b), they shall be classified under the heading which occurs last in numerical order among those which merit equal consideration.” Since Customs has concluded that both the paper component and the textile component are equally important and, therefore, headings 4823, HTSUS, and 6307, HTSUS, merit equal consideration, the paint filter is classified in heading 6307, HTSUS, since it is the heading that falls last in the numerical order. See HQ 088282 (Mar. 21, 1991); HQ 555427; and NY 868276 (Nov. 12, 1991).

Continuing the classification of the paint filter / paint strainer, the article is classified in subheading 6307.90.9889, HTSUSA. Subheading 6307.90.9889, HTSUSA, provides for:

Other made-up articles, including dress patterns:

Other:

Other:
Other,

Other:
Other.

It is the understanding of this office that the domestic interested party maintains that its correspondence of September 23, 2002, constitutes a petition that it desires to contest the Customs Service classification and rate of duty determinations of the designated imported merchandise. The interested party further suggests entitlement to “such information as to the entries and consignees of such merchandiseas will enable [it] to contest theclassification, or rate of duty imposed upon such merchandise in the liquidation of one such entry.” 19 U.S.C. 1516 (c).

The Customs Service disagrees with the interested party’s interpretation of section 1516. It is the decision of this office that since the classification and rate of duty determinations of the Customs Service on the designated imported merchandise are consistent with the classification and rate of duty urged by the domestic interested party, there is no basis for the interested party to protest Customs determinations.

Counsel for the interested party advises Customs that the interested party has reason to believe that imports of the designated imported merchandise are being misclassified by importers at the time of entry. If imports of the relevant merchandise are being misclassified by importers, section 1516 is not the appropriate vehicle to address this situation. Domestic interested parties or competing importers who question the entered classification of merchandise should bring all information concerning such situation to the attention of their local Customs officers.

HOLDING

The designated imported merchandise, the paint filter / paint strainer, is classified in subheading 6307.90.9889, Harmonized Tariff Schedule of the United States Annotated.

The General Column 1 Rate of Duty is seven (7) percent, ad valorem.

Notice in the Federal Register will not be published because the domestic interested party is not “dissatisfied,” pursuant to 19 U.S.C. 1516 (c), with the classification and rate of duty determinations of the Customs Service.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division

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