CLA-2 CO:R:C:M 088645 NLP

District Director
U.S. Customs Service
US Customhouse
1 East Bay Street
Savannah, GA 31401

RE: Protest No. 1704-90-000207; facing material applied to a gasket; cellulosic fibers; mineral substances; Heading 4805; Heading 6815; GRI 3(b); composite good; essential character; HRL 076899 Dear District Director:

The following is our decision regarding the Protest and Request for Further Review No. 1704-90-000207, dated September 26, 1990. At issue is the classification of "Novaplan", a non- asbestos gasket material, under the Harmonized Tariff Schedule of the United States (HTSUS).


Novaplan is a non-asbestos product which can be used for a variety of applications. However, the protestant uses it as a facing applied to both sides of automotive engine head-gasket core material. Novaplan serves as a carrier for bonding material that is applied to enhance the seal of an engine block to the engine head.

According to the importer, the first step in the manufacture of Novaplan is the preparation of a pulp, which is made by blending the different components and diluting them in water to enable the pulp to be run on a paper machine. The components used are predominantly cellulose, latex, inorganic fillers and aramid fibers. The diluted pulp is piped via a slurry on to the wires in a Fourdrinier paper-making machine which move forward with a slight vibratory movement causing the water in the pulp to be shaken clear. The pulp, having lost most of its water, has now become felted and relatively smooth. It is then passed on to an endless belt of felt and from there to a press, where further amounts of water are squeezed from the material. It is then transported through a drying tunnel and rolled on to a large spindle. The rolls are cut to the desired width needed by the purchaser.

According to Customs laboratory report No. 4-90-10092-001, dated December 12, 1989, based on laboratory analysis and information supplied by the manufacturer, the components of Novaplan are as follows:


Silicic acid 43 % Mineral wool 29 % Aramid fibers 10 % Cellulosic fibers 7 % Acrylonitrile-Butadiene Rubber 7 % Organic binders 4 %

Upon importation, your office liquidated Novaplan in subheading 6815.99.40, HTSUS, which provides for articles of stone or of other mineral substances (including articles of peat), not elsewhere specified or included, other articles, other, other.

Counsel for the importer contends that the essential character of Novaplan makes it properly classifiable as paper in subheading 4805.70.40, HTSUS, which provides for other paper and paperboard, weighing more than 150 g/per square meter but less than 225 g/per square meter other, other.


Is Novaplan classified as other paper and paperboard in subheading 4805.70.40, HTSUS, or as other mineral substances of subheading 6815.99.40, HTSUS.


Counsel for the importer argues that the cellulosic fibers impart the essential character to Novaplan because Novaplan's production is the same as paper production and its uses are akin to the uses of paper. Also, the fact that the cellulosic fibers only comprise 7% of the weight of Novaplan should not negate it as comprising Novaplan's essential character. Furthermore, according to the manufacturer, 88.58% of Novaplan's surface is cellulosic fibers, while the aramid fibers account for 5.64%, the mineral fibers only .14% and the fillers account for 5.64%. Additionally, in a meeting with counsel and representatives of the importer and the manufacturer, counsel stated that the cellulosic fibers represent 60 times as much volume as the mineral fibers. Finally, counsel argues that without the cellulosic fibers, Novaplan could not contain enough mineral fibers and filler within its pores to be heat resistant, nor would it be pliable enough to form a seal as part of a gasket.

The classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification shall be determined according to the terms of the headings 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's may be applied, taken in order.

Heading 4805, HTSUS, provides for other uncoated paper and paperboard, in rolls or sheets. The General Explanatory Notes to Chapter 48 of the Harmonized Commodity Description and Coding System (HCDCS), page 664, state that paper consists essentially of cellulosic fibers of the pulps of Chapter 47 felted together in sheet form. Therefore, to be considered paper Novaplan must be one of the pulps described in Chapter 47, HTSUS, and consist essentially of cellulose fibers.

Chapter 47, HTSUS, provides for pulp of wood or of other fibrous cellulosic material; waste and scrap of paper or paperboard. The HCDCS General Explanatory Notes to Section X, Chapter 47, page 655, state in pertinent part that "[t]he pulp of this Chapter consists essentially of cellulose fibers obtained from various vegetable materials, or from waste textiles of vegetable origin." These Notes also state that other materials used for making pulp include the following: cotton linters, rags (particularly cotton, linen or hemp) and other textile wastes such as old ropes, straw, esparto, flax, ramie, jute, hemp, sisal, bamboo and various other grasses and reeds.

It is our position that the pulp from which Novaplan is made does not consist essentially of cellulosic fibers based on the low percentage (7%) of cellulosic fibers present in Novaplan. Moreover, in examining the headings of Chapter 47, HTSUS, we find that the pulp of Novaplan is not described therein. The HCDCS Explanatory Notes to Chapter 47, page 656-688, describe 4 basic types of pulps: mechanical wood pulp, chemical wood pulp, semi- chemical wood pulp and pulps of other fibrous cellulosic material. An examination of these Notes makes it clear that Novaplan is not included within any of these descriptions. Nor can Novaplan be said to be a pulp of other cellulosic fibers as it is not made essentially of any "[o]ther materials used for making pulp" listed in the HCDCS General Explanatory Notes to Chapter 47 on page 655. Thus, Novaplan cannot be classified in Heading 4805, HTSUS.

Moreover, the fact that Novaplan is made like paper and is used in areas that paper is used in, while informative, is not dispositive. See, HRL 076899, dated February 24, 1986. We do not believe that a product which is over 90% by weight of materials other than cellulosic fibers can be said to be essentially of such fibers. As a result, Novaplan does not satisfy the terms of Heading 4805, HTSUS. 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.

Novaplan is a composite good; that is, it is composed of two or more constituent ingredients which combine to produce the whole. As Novaplan cannot be classified according to GRI 1 or GRI 2(b), the GRI's 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 the following:

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.

HCDCS Explanatory Note VIII to GRI 3(b), page 4, states that: 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.

Among the components of Novaplan other than the cellulose fibers, the mineral wool is the predominant material. Although both the aramid fibers and the mineral wool provide strength and temperature resistance, we find that because the mineral wool predominates by weight over the rest of the components it represents the essential character of the Novaplan. Therefore, the Novaplan is classified in subheading 6815.99.40, HTSUS.


The protest should be denied in full. A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.


John Durant, Director
Commercial Rulings Division