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HQ 967003




August 6, 2004

CLA-2 RR:CR:GC 967003 AM

CATEGORY: CLASSIFICATION

TARIFF NO.: 3921.19.0000

Mr. Melvin S. Schwechter
LeBoeuf, Lamb, Greene, Macrae, L.L.P.
1875 Connecticut Ave., N.W. Ste. 1200
Washington, D.C. 20009-5728

RE: Revocation of Treatment; Durapore® Filtering Material imported on rolls

Dear Mr. Schwechter:

This is in reference to your letter of January 13, 2004, on behalf of Millipore Corp., concerning the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of Durapore® filtering material imported from Ireland in rolls. We have considered the arguments you made in a supplemental submission, dated April 21, 2004, and a meeting at Headquarters on that date. According to the information you provided, your client has confirmed that it has imported Durapore® material on rolls into the United States under subheading 8421.99.0080, HTSUS, the provision for parts of filtering apparatus, since 1997 without incident, thus creating a treatment of these goods. We believe this treatment is in error.

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. 103-82, 107 Stat. 2057, 2186), notice of the proposed revocation of such treatment was published on June 16, 2004, in the Customs Bulletin, in Volume 38, Number 25. No comments were received in response to this notice.

FACTS:

Durapore® is porous filtering material made from polyvinylidene fluoride (PVDF) that is designed to accomplish the sterile filtration of liquids and gasses. The Durapore® material is imported in rolls.

After entry, the material is cut into specific shapes required for insertion into the filter housing. The material may also be pleated or laminated for a particular housing. The finished Durapore® filter is inserted into a filtering device used primarily to remove bacteria in the pharmaceutical, biopharmaceutical, electronics and food and beverage industries.

Durapore® filtering material is created with one of two specific numbers of pores. Although identical to the naked eye, the material is treated differently. Rolls of material with certain porosity are cut into circles after entry. The circles are encased in plastic discs which are assembled into different size filters. The diameter of the circles and pattern of cutting them from the roll is constant thus creating the same number of circular filter disc inserts from any given length of material. Rolls of material with the other porosity are pleated and fitted into a plastic cartridge casing. The number and size of the pleats remains constant such that the same number of pleated filter cartridge inserts are created from any given length of Durapore® material. For instance, a given 100 feet of Durapore® roll may produce 1,745 discs or 72, 144, or 288 pleated cartridges with some amount of waste left over. There are no markings on the material to indicate the number of filters to be made from the material.

ISSUE:

Whether filtering material on rolls, cut to shape and inserted in housing after entry, is classifiable as parts of filtering or purifying machinery or apparatus?

LAW AND ANALYSIS:

Merchandise imported into the U.S. is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context that requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law.

GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order. GRI 2(a) states "[A]ny reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article. . . ." GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs.

In interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are (official interpretation of the Harmonized System at the international level) generally indicative of the proper interpretation of the HTSUS. See T.D. 8980, 54 Fed. Reg. 35127 (August 23, 1989).

The following provisions are relevant to the classification of this product:

3921 Plates, sheets, film, foil and strip, of plastics:

3921.19 Cellular:

3921.19.0000 Of other plastic

Centrifuges, including centrifugal dryers; filtering or purifying machinery and apparatus, for liquids or gases; parts thereof:

Parts:

8421.99.00 Other:

8421.99.0080 Other

EN 84.21 states, in pertinent part, the following:

PARTS

Subject to the general provisions regarding the classification of parts (see the General Explanatory Note to Section XVI), the heading covers parts for the above-mentioned types of filters and purifiers. Such parts include, inter alia : . . .

It should be noted, however, that filter blocks of paper pulp fall in heading 48.12 and that many other filtering elements (ceramics, textiles, felts, etc.) are classified according to their constituent material. (emphasis added).

The issue of whether material is to be deemed an article, whether finished or unfinished, has been examined at length by the courts. Customs has long adhered to the general principal set forth in the following cases, that goods which remain material when entered are not classifiable as a particular, identifiable article unfinished. See The Harding Co. et al v. United States, 23 CCPA 250, T.D. 48109 (1936) (rolls of brake lining held to be material because the identity of the brake lining was not fixed with certainty); American Import Co. v. United States, 26 CCPA 72, 75, T.D. 49612 (1938) (lengths of silk fishing leader gut classified as manufactures of silk rather than unfinished leaders); F.H. Paul & Stein Bros., Inc. v. United States, 44 Cust. Ct. 130, C.D. 2166 (1960) (rolls of aluminum foil without lines of demarcation held to be material and not articles featuring an electrical element or device); Sandvik Steel, Inc. v. United States, 66 Cust. Ct. 12, C.D. 4161, 321 F.Supp. 1031 (1971) (knife steel in coils with no lines of demarcation, requiring cutting to length, held to be material rather than unfinished blades); Naftone, Inc. v. United States, 67 Cust. Ct. 340, C.D. 4294 (1971) (rolls of plastic film without demarcations, having only one use, held to be insulating material).

In Baxter Healthcare Corp. of Puerto Rico v. U. S., 182 F. 3d 1333, 1338-9, (1999), the disputed merchandise was monofilament imported in rolls for use in oxygenators. The Court states:

Whether an imported item that is made into multiple parts after import is classifiable as "parts" of other articles under the HTSUS involves two questions. First, the item must be dedicated solely or principally for use in those articles and must not have substantial other independent commercial uses. See Bauerhin, 110 F.3d at 779. If the item has substantial other commercial uses, "it is a distinct and separate commercial entity," not a part. Id. (quoting United States v. Willoughby Camera Stores, Inc., 21 C.C.P.A. 322 (1933)). In this case, it is undisputed that Oxyphan® has no commercial use other than making membrane oxygenators and therefore is "dedicated" to such use.

Second, if the item as imported can be made into multiple parts of articles, the item must identify and fix with certainty the individual parts that are to be made from it. See The Harding Co. v. United States, 23 C.C.P.A. 250, 253 (1936). In Harding, our predecessor court held that an imported item made from asbestos yarn, wire, and a mixture of other materials, used for the sole purpose of making brake linings, was properly classified as a manufacture of yarn rather than as a "part" of an automobile because the individual brake lining parts to be made from it were not identified or otherwise "fixed with certainty"; rather, the item had to be individually cut to custom fit each brake shoe made. See id. at 252-53. "In the condition as imported, the long roll of brake-lining material has in no manner been dedicated to the making of any particular brake lining. To be a part of an automobile, that is a brake lining, it must be more than mere material for making a brake lining." Id. at 252. In this case, it is undisputed that each roll of Oxyphan® contributes material to approximately four oxygenators. At the time of import, the individual parts cannot be discerned from the roll, and the roll nowhere marks or otherwise identifies the individual parts to be made from it. Rather, Baxter individually cuts lengths of Oxyphan® from a roll and custom-fits them around a steel bellows. The exact length needed per oxygenator is not known until the oxygenator is made. Because the individual parts are not identifiable or fixed at the time of import, Oxyphan® cannot be classified as a "part" of an oxygenator.

Like the Oxyphan® material in Baxter, the instant merchandise is a specialized material, dedicated to only one use, but not fixed with certainty as a part. The Durapore® material is imported in rolls and is cut to specific sizes and shapes after entry. No objective assessment of the number of filter discs or pleated inserts can be gleaned from the material as imported. Like the Oxyphan® material in Baxter, the discs and pleated cartridges are cut from the Durapore® material with some material left over. Accordingly, the dimensions, and therefore, the identity, of the article to be made from the imported goods is neither fixed nor certain and those goods can not be considered a "part" of filtering machinery or apparatus.

Furthermore, contrary to your contention, EN 84.21 does not demand a finding otherwise. In fact, the EN states that many filtering elements are classified according to their constituent material.

Lastly, the cases you cite do not support the conclusion you advocate. The court in Clipper Belt Lacer Co., Inc. v. United States, 14 CIT 146, 738 F. Supp. 528 (1990), did not define a "second line of cases" as you contend. Rather, Clipper Belt dealt with distinct fasteners for belt conveyors under the Tariff Schedule of the United States (TSUS), not merchandise imported in material lengths under the HTSUS. The court in Ludvig Svensson Inc. v. United States, 62 F. Supp. 2d 1171, noted that its findings were peculiar to agricultural products as dictated in the legislative history to the provisions discussed therein. Id. at 1177. Furthermore, in NY A88742, dated July 1, 1997, the product was imported cut and punched to various configurations for specific machines. In G81815, dated September 29, 2000, the product was unfinished but entered in the approximate size and shape of the finished product. Therefore, these cases do not contradict the Baxter analysis described above as they do not deal with products imported in material lengths.

HOLDING:

Durapore® filtering material imported in rolls is classified in subheading 3921.19.0000, HTSUS, the provision for "Plates, sheets, film, foil and strip, of plastics: Cellular: Of other plastics." The rate of duty is 6.5% ad valorem.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov.

The treatment of Durapore® filtering material previously afforded your client is 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.

Sincerely,

Myles B. Harmon, Director

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