CLA-2 CO:R:F 955991 ALS
District Director of Customs
1 La Puntilla Street, Room 203
San Juan, PR 00901
RE: Request for Further Review of Protest 4909-93-100132, Dated
December 22, 1993, Concerning Dry Nylon Media
Dear Mr. Robles:
This ruling is on a protest that was filed against your
decision of December 22, 1993, regarding a series of entries
covering the subject product.
FACTS:
The product under consideration, known as Ultipor N66, is
referred to as a dry nylon media, a microporous filter membrane
which is imported as roll goods. Subsequent to importation it is
made up into disposable filter elements used to filter such
products as pharmaceuticals, beer, water, intravenous solutions,
etc.. The product was originally classified as noncellular
plastic based on a Customs laboratory analysis. A 100 power
examination of the product failed to reveal any cells in the
product. The invoice from a related party indicated that the
product was noncellular. The product is prepared by the phase
inversion process from a nylon 66 polymer and a nonwoven
polyester textile. Customs laboratory examination under 100X
magnification confirmed that the product was a nonwoven synthetic
textile material (polyester) as a support, weighing 0.0067 kg/m2.
It was found to be composed of 35.44% and plastic 64.56%, by
weight. No cells were observed. The sample furnished appears to
be thin, solid white sheet of material with no apparent openings
or voids. However, pictures of the product at 500X (cross
section) and 2000X (top surface) magnification, furnished by the
importer, reveal a microporous membrane.
- 2 -
ISSUE:
Is the product, a micorporous plastic, classifiable as a
cellular plastic?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) is governed by
the General Rules of Interpretation (GRI's) taken in order.
GRI 1 provides that the classification is determined first in
accordance with the terms of the headings and any relative
section and chapter notes. If GRI fails to classify the goods
and if the headings and legal notes do not otherwise require, the
remaining GRI's are applied, taken in order.
We note that the importer indicates that the product is
produced by the phase inversion process as that process is
described in Ullmann's Encyclopedia of Industrial Chemistry,
Fifth Edition. Such publication states that in this process
"a polymer is dissolved in an appropriate solvent and spread as a
20-200 æm-thick film on a film, plate, belt or, as in the present
case, fabric support. A precipitation agent such as water is
added to this liquid film, causing separation of the homogeneous
polymer solution into two phases - a solid polymer-rich phase and
a liquid solid-rich phase... The precipitated polymer forms a
porous structure containing a network of fairly uniform pores...
Symmetric microporous membranes have been prepared from nylon
66..." The Encyclopedia of Polymer Science and Engineering,
Mark, Unit 311101007, uses the term "phase separation technique"
in describing such process which it also lists in the reference
under the "Foamed Plastics" chapter in the "Other Processes"
section.
Historically, we have not considered microporous plastics as
meeting the definition of cellular plastics. Also, the need for
high power magnification to ascertain the presents of cells could
cause a significant administrative problem. In this regard, we
note that normally a product is subjected to 100X magnification
to determine whether cells are present. In this case, the
existence of pores or voids was only visible when the cross
section was submitted to 500X and the top surface was submitted
to 2000X on the electron microscope.
We, however, noted that the Harmonized System Committee, at
its 12th session in July 1993, amended Chapter 39 of the
Explanatory Notes to Harmonized System (EN) regarding cellular - 3 -
plastics. Such EN, which represents the view of the
international classification experts, now provides, as herein
pertinent:
Cellular plastics are plastics having many cells
(either open, closed or both), dispersed
throughout their mass. They include foam
plastics, expanded plastics and microporous or
microcellular plastics. They may be either
flexible or rigid.
While the EN is not binding in the U.S. and they are merely
used for guidance in a similar manner to legislative history,
while we and another country expressed concern about the above
modification during the Harmonized System Committee sessions and
although most, if not all, of the entries covered by the subject
protest were filed and accepted prior to the amendment of the EN,
the classification suggested by the importer would not appear to
be inappropriate. Both the EN and the technical references
previously noted support the conclusion the instant microporous
plastic should be classified as a cellular plastic.
HOLDING:
Microporous plastics in roll form produced by the phase
inversion process or phase separation technique, which produces a
porous structure containing a network of fairly uniform pores,
which are to be made up into disposable filter elements to filter
various products, should be classified in subheading
3921.19.0000, HTSUSA, as Other plates, sheets, film, foil and
strip, of plastics, Cellular, Of other plastics. Products so
classified are subject to a general rate of duty of 6.6 percent
ad valorem.
Since reclassification of the merchandise as indicated above
will result in the same rate of duty as claimed you are
instructed to allow the protest in full.
A copy of this ruling should be attached to the Customs Form
19 and provided to the protestant as part of the notice of action
on the protest.
In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be provided by your office to the
protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with this decision
must be accomplished prior to the mailing of the decision. Sixty
days from the date of the decision the Office of Regulations and - 4 -
Rulings will take steps to make the decision available to Customs
personnel via the Customs Rulings Module in ACS and the public
via the Diskette Subscription Service, Freedom of Information Act
and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division