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HQ 967012




July 7, 2004

CLA-2 RR:CR:TE 967012 ASM

CATEGORY: CLASSIFICATION

TARIFF NO.: 5911.90.0080

Dennis Heck
Import Compliance Manager
Yamaha Corporation of America
6600 Orangethorpe Avenue
P.O. Box 6600
Buena Park, CA 90622-6600

RE: Request for reconsideration of NY K81477 and NY K82168, regarding classification of felt washers of textile for brass musical instruments

Dear Mr. Heck:

This is in response to a letter, dated February 5, 2004, from the Yamaha Corporation of America requesting reconsideration of Customs and Border Protection (CBP) New York Ruling Letter (NY) K81477, dated December 17, 2003, involving the classification of Yamaha felt washers of textile for brass musical instruments under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Please be advised that correspondence dated February 2, 2004, and identified as NY K82168, rejected your request for reconsideration of a classification ruling due to the fact that additional information was requested by the CBP National Import Specialist. Thus, CBP hasn’t issued a classification ruling under NY K82168. However, all the issues raised in your request for reconsideration have now been consolidated in this ruling. Samples have been submitted to this office for examination.

FACTS:

NY K81477 involved the classification of five separate items. However, your request identifies only two of the five items for reconsideration, which are constructed of textile felt material:

A cut to size valve felt washer for trumpet (B5441060); A cut to size valve button felt washer for baritone horn and euphonium (G2141101).

NY K81477 classified the valve felt washer (B5441060) and the valve button felt washer (G2141101) in subheading 5911.90.0080, HTSUSA, which provides for “Textile products and articles, for technical uses, specified in note 7 to this chapter: Other, Other.” You disagree with CBP’s classification of the subject merchandise and assert that these articles are properly classified in subheading 9209.99, HTSUSA, which provides for “Parts (for example, mechanisms for music boxes) and accessories (for example, cards, discs and rolls for mechanical instruments) of musical instruments; metronomes, tuning fork and pitch pipes of all kinds: Other: Other: Other”.

In your request for reconsideration, it was noted that the music industry describes “Washers” for musical instruments in a variety of ways. You indicated that many “Washers” are made of felt and can be called “Felt Washers, Valve Button Felts, Valve Felts, Valve Pads (of rubber material), Valve Guide Washer (of metal)”. You further stated that “Valve Button Felts” could be described as “Washers” per the examples set forth in your submission. You separately described a “Key Pad” as an article that is normally made of leather cut to the size of the keyhole.

ISSUE:

What is the proper classification for the merchandise?

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings 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 heading 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, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

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:

Heading 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 card clothing, and similar fabrics of a kind used for other technical purposes, including narrow fabrics made of velvet impregnated with rubber, for covering weaving spindles (weaving beams);

(ii) Bolting cloth;

(iii) Straining cloth of a kind used in oil presses or the like, of textile material or human hair;

(iv) Flat woven textile fabrics with multiple warp or weft, whether or not felted, impregnated or coated, of a kind used in machinery or for 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 papermaking or similar machines (for example, for pulp or asbestos-cement), gaskets, washers, polishing discs and other machinery parts). [emphasis supplied]

The EN to heading 5911, HTSUSA, states that “textile products and articles of this heading present particular characteristics which identify them as being for use in various types of machinery, apparatus, equipment or instruments or as tools or parts of tools.”

Furthermore, Section B to the EN for heading 5911 specifically addresses textile articles of a kind used for technical purposes. The EN states in pertinent part:

All textile articles of a kind used for technical purposes (other than those of headings 59.08 to 59.10) are classified in this heading and not elsewhere in Section XI (see Note 7(b) to the Chapter): . . .

The subject articles are specifically provided for in the EN to heading 5911, HTSUSA. In your submission these articles were identified and described as “Washers” of felt material and are intended to be used for the proper function of valves on brass wind instruments, i.e., for technical purposes.

We also recognize that subheading 9209, HTSUSA, provides for parts and accessories of musical instruments. However, the EN to 9209, only provides an example of “key pads (for flutes, clarinets, etc.)” for “wood-wind” instruments. In this instance, the felt washers are constructed of textile material and do not function as a “key pad” that is used in wind instruments such as a flute or clarinet to form a direct contact with the key hole.

As you have noted in your submission, a “key pad” is cut to the exact specification for the “key hole” and is normally made of leather. It is our understanding that most musical wood-wind instruments require air to be blown through the body of the instrument and various keys depressed to form a seal that allows specific notes to be produced. In this way, the depressed “key pad” is affected by the air-flow because resulting condensation or moisture is produced within the instrument. Thus, the “key pad” is normally made of leather or other types of water-resistant material or coating so that the pad will not become easily saturated and lose the necessary seal against the key hole.

In the instant case, you have failed to indicate whether the washers have any water-resistant characteristics. Based on our examination, these felt washers are constructed of porous textile material that may become saturated through contact with moisture. This would detrimentally affect their ability to maintain a seal. Furthermore, these washers do not seem to have direct contact with a key hole and are not designed to conform to key hole specifications. Rather, according to the diagrams provided with your submission, both the valve button felt washer (G2141101) and the valve felt washer (B5441060), are designed to encircle the rod that is depressed into the valve when the finger tip is pressed downward against the valve button.

It is our determination that the subject washers are textile articles for a technical use within the meaning of heading 5911, HTSUSA, because they are constructed of felt textile materials and are eo nomine provided for in the exemplars to the EN’s for 5911. In fact, classification of the subject articles in heading 5911, HTSUSA, is consistent with earlier CBP rulings and affirms our classification decision in NY B87050, dated July 25, 1997, wherein a Yamaha instrument felt washer (U0638071) was classified as a textile article for technical use in subheading 5911.90.0080, HTSUSA. See also CBP Headquarters Ruling Letter (HQ) 083199, dated March 23, 1990, which classified felt washer components for a photocopier machine as textile articles of a kind used for technical purposes in heading 5911, HTSUSA; NY 875496, dated July 23, 1992, classified felt washers used in the “Duratype 24 SE Digital Lettering System” in heading 5911, HTSUSA. Of particular relevance is HQ 962967, dated November 21, 2000, which classified a gasket (constructed of foam and metal particles enmeshed in a fabric cover used to provide corrosion resistance in a computer’s electronic components) as “Textile products and articles, for technical uses, specified in note 7 to this chapter: Other: Other” in subheading 5911.90.0080, HTSUSA. HQ 962967 denied the protestant’s assertion that the merchandise was classified as “parts and accessories of machinery” under heading 8473, HTSUSA.

In view of the foregoing, we find that NY K81477, dated December 17, 2003, correctly classified the subject merchandise in subheading 5911.90.0080, HTSUSA, which provides for textile articles for technical uses.

HOLDING:

NY K81477, dated December 17, 2003, is hereby affirmed.

The subject articles of textile materials, identified as the valve button felt washer (G2141101) and the valve felt washer (B5441060), are correctly classified in subheading 5911.90.0080, HTSUSA, which provides for “Textile products and articles, for technical uses, specified in note 7 to this chapter: Other, Other.” The general column one duty rate is 3.8 percent ad valorem.

The classification of the remaining articles the subject of NY K81477 is unchanged.

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

Sincerely,

Myles B. Harmon, Director

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