CLA-2 CO:R:C:T 952938 BC

Robert J. Richter
District Director of Customs
U.S. Customs Service
1 East Bay Street
Savannah, GA 31401

RE: Further review of protest no. 1704-92-100250; nonwoven laminated fabric imported in rolls and used in batteries; battery separator; not a battery part; technical use fabric; Note 7, Chapter 59, HTSUSA

Dear Mr. Richter:

The following is our response to the application for further review of protest no. 1704-92-100250 that your firm filed on behalf of Duracell U.S.A. The protest, timely filed on July 9, 1992, covers three entries that were liquidated on April 10, 1992.


The PROTESTANT, Duracell U.S.A., is an importer of merchandise described as a nonwoven laminated textile material that is used in alkaline-electrolyte electrochemical batteries. The material is imported in bulk rolls many yards long and in various widths ranging from 36 inches to 48 inches. After importation, the material is cut into numerous narrower rolls approximately one inch wide. This narrower material is cut to length (believed to be in the range of 2.5 to 4.5 inches) and inserted into size "C" and "D" batteries as they are being produced. Its function is to separate the anode from the cathode so as to prevent shorting and gassing of the battery. It is produced through an adhesive system patented by Duracell, Inc., whereby an absorbent nonwoven blend of here unnamed fibers is bonded by an adhesive to a barrier film of regenerated cellulose.

PROTESTANT filed three entries covering the subject merchandise, dated November 22, December 14, and December 30, 1991. The entries incorrectly classified the merchandise as condenser paper under subheading 4805.60, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Customs issued a CF 28, requesting further information regarding the merchandise. PROTESTANT did not respond. Customs then issued a Notice of Action/Rate Advance, dated March 18, 1992, indicating that the merchandise was classifiable as nonwoven laminated fabric under subheading 5603.00.30, HTSUSA, dutiable at 16% ad valorem. The entries were liquidated as such on April 10, 1992, and PROTESTANT filed the instant protest.


What is the proper classification for the laminated nonwoven textile material used as separators in alkaline-electrolyte electrochemical batteries?


In this protest, PROTESTANT first asserts that the laminated nonwoven textile material at issue is classifiable as a battery part under subheading 8506.90.00, HTSUSA. However, given the fact that the merchandise at issue is entered on rolls, in material lengths, it is not in the form of a "part." In one of the rulings cited by PROTESTANT (for the alternative proposition that merchandise of the kind at issue is classifiable as technical use fabric under subheading 5911, HTSUSA), Headquarters Ruling Letter (HRL) 084610, dated May 17, 1990, Customs addressed the same issue - nonwoven textile material imported on rolls in material lengths - and held that merchandise imported in material lengths cannot be classified as a part. This represents Customs position, generally. (See also HRL 953056, June 16, 1993.)

PROTESTANT cites Heraeus-Amersil, Inc. v. United States, 10 CIT 258 (1986), for the proposition that the instant imported merchandise, although imported in a roll in material lengths, can be classified as a part. PROTESTANT also cites in this respect HRL 081606, dated August 10, 1988, a Customs ruling that addressed Heraeus-Amersil.

In Heraeus-Amersil, the United States Court of International Trade (CIT) held that contact tape (wire) imported on reels in continuous lengths is classifiable as parts of telephone relays. There, the contact tape was wound from the reel and positioned on the relay, where it was then welded to the relay to appropriate strengths. When the welding was completed, the contact tape was cut to the appropriate length. PROTESTANT contends that this operation is analogous to what takes place in the instant case with the laminated nonwoven (battery separator) material.

However, there is a significant distinction between the instant case and Heraeus-Amersil. The contact tape in Heraeus- Amersil was applied to the relay directly from the reel that was imported; in other words, the reeled contact tape in its imported condition was not altered prior to application of the tape to the relay. Even then, the positioning, welding and cutting were not alterations but steps in the assembly process. In the instant case, the imported roll of laminated nonwoven material was cut into smaller rolls after importation. Thus, the laminated nonwoven material was altered from its imported condition prior to its application in the assembly process. Consequently, Heraeus-Amersil is distinguishable on its facts. Moreover, Heraeus-Amersil determined a classification issue under the Tariff Schedules of the United States, the tariff that has since been replaced by the HTSUS.

In HRL 081606, Customs held that imported cold rolled steel strip was not classifiable as a battery part because, after importation in rolls, or coils, the steel strip was subjected to an electromechanical process to deposit active nickel and cadmium oxides. (In addition, it was then cut to two inch lengths, with connecting tabs welded to them.) The ruling stated that the post-importation processing was not a mere cutting to length as took place in Heraeus-Amersil. Like Heraeus-Amersil, this ruling is distinguishable on its facts and is thus inapplicable to the instant case.

As an alternative to classification of the laminated nonwoven material as a part, PROTESTANT contends that it should be classified as a textile for technical use in Chapter 59, HTSUSA. We agree.

Because the laminated nonwoven material at issue is used as a battery separator designed to separate the cathode from the anode in alkaline-electrolyte electrochemical batteries, specifically to separate the substances that chemically react to produce the batteries' power, we believe that the use of this material qualifies as technical. It is specifically designed by a patented process to possess the properties necessary to accomplish this separation. We also believe that an alkaline- electrolyte electrochemical battery qualifies as the kind of instrument (or similar device) referred to in the Explanatory Notes for subheading 5911: "The 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." (Harmonized Commodity Description and Coding System, p. 822.)

Note 7 of Chapter 59, HTSUSA, governs the classification of textile products and articles for technical use under subheading 5911, HTSUSA. Because the merchandise at issue is a textile product "in the piece," Note 7(a) is applicable. Under Note 7(a), we find that paragraph (i) is applicable: "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." While Note 1, Chapter 59, HTSUSA, provides that the term "textile fabrics" applies "only to the woven fabrics of chapters 50 to 55 and headings 5803 and 5806 . . .," this limitation is qualified by the words, "except where the context otherwise requires." The context of subheading 5911, HTSUSA, pertaining to technical use fabrics, is a context given to "require otherwise," as evidenced by the Explanatory Notes for subheading 5603, HTSUSA: "The heading also excludes: (ij) Nonwovens for technical uses, heading 59.11."


Based on the foregoing, we conclude that the laminated nonwoven textile material used to act as battery separators in alkaline-electrolyte electrochemical batteries is classifiable under subheading 5911.10.2000, HTSUSA, as a textile product for technical use specified in note 7 to Chapter 59, HTSUSA: textile fabric combined with one or more layers of rubber, leather or other material, of a kind used for card clothing and similar fabric for other technical uses: other. The applicable duty rate is 7.5% ad valorem.

You are hereby instructed to reliquidate the entries covered by this protest in accordance with the above holding. Please attach a copy of this decision to the CF 19, Notice of Action, provided to PROTESTANT.


John Durant, Director