CLA-2 RR:TC:TE 958415 SK
Port Director
U.S. Customs Service
110 S. Fourth Street
Minneapolis, MN 55401
RE: Decision on Application for Further Review of Protest No.
3501-95-100254;
100 percent polyester nonwoven filter material; resin bonding;
used as filter in desalination, chemical and waste treatment
processes; not essentially of cellulosic materials therefore not
classifiable in Chapter 48, HTS; filter fabric for technical use;
Note 7 to Chapter 59; 5911.40.0000; HRL 955244 (4/4/94): 954138
(6/15/93); 950167 (3/13/92).
Dear Sir:
This is a decision on application for further review of a
protest timely filed by Wm. L. Griffin & Co., on behalf of
Filmtec Corporation, on July 10, 1995, against your decision
regarding the classification of 100 percent polyester nonwoven
filter fabric. At issue are three entries of the subject
merchandise made at the port of Minneapolis on December 6, 1994,
January 2, 1995, and February 15, 1995. These entries were
respectively liquidated on May 5, 1995, April 21, 1995, and June
9, 1995.
FACTS:
The subject merchandise consists of rolls of nonwoven 100
percent polyester fibers. The merchandise was analyzed by a
Customs laboratory. The lab report describes the merchandise as
"a semi-transparent glossy sheet, ... composed of polyester
fibers and a resin with the characteristics of polyethylene. The
fibers have a
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length of 7.9 mm and appear to be bonded by the resin to form a
sheet." Counsel for the Protestant, Mr. Sal Caramagno of the law
firm of Ross & Hardies, states in his memorandum in support of
the Request for Further Review of Protest No. 3501-95-100254,
dated August 1, 1995, that the subject material is used in sea
water and brackish water desalination, chemical processing and
waste treatment. A sample was submitted to this office for
examination.
The subject merchandise was liquidated under subheading
5603.00.9030 Harmonized Tariff Schedule of the United States
Annotated (HTSUSA), which, under the 1995 tariff, provided for,
"[N]onwovens, whether or not impregnated, coated, covered or
laminated: other: other... other nonwovens, whether or not
impregnated, coated or covered: thermal bonded, of staple
fibers... ," dutiable at a rate of 10 percent ad valorem.
Protestant submits that classification is proper under subheading
4805.40.0000, HTSUSA, which provides for, in pertinent part,
filter paper and paperboard.
ISSUE:
What is the proper classification of the subject
merchandise?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is governed
by the General Rules of Interpretation (GRI's). GRI 1 provides
that classification shall be determined according to the terms of
the headings and any relative section or chapter notes.
Merchandise that cannot be classified in accordance with GRI 1 is
to be classified in accordance with subsequent GRI's, applied in
order.
The Explanatory Notes (EN) to the HTSUSA constitute the
official interpretation of the tariff at the international level.
While not legally binding, they do represent the considered views
of classification experts of the Harmonized System Committee. It
has therefore been the practice of the Customs Service to follow,
whenever possible, the terms of the EN when interpreting the
HTSUSA.
Heading 4805, HTSUSA, provides for various types of uncoated
paper and paperboard. The General Explanatory Note to Chapter
48, at page 664, states:
"[P]aper consists essentially of the cellulosic fibres
of the pulps
of Chapter 47 felted together in sheet form. Many
products, such
as certain tea bag materials, consist of a mixture of
these cellulose
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fibres and of textile fibres (in particular man-made
fibres as defined
in Note 1 to Chapter 54). Where the textile fibres
predominate by
weight, the products are not regarded as paper and are
classified as nonwovens."
As the subject merchandise consists of 100 percent polyester
to which a resin has been bonded, it is not classifiable within
this chapter of the tariff inasmuch as no cellulosic fibres are
present.
Heading 5603, HTSUSA, provides for nonwoven fabrics. As the
merchandise at issue is a nonwoven, classification is seemingly
proper within this provision. EN (ij) to heading 5603, HTSUSA,
at page 776, however, states that "[N]onwovens for technical
uses, of heading 59.11" are excluded from this heading. As the
subject merchandise is for technical use (i.e., for use in
filtration processes such as desalination, chemical processes,
and waste treatment), classification is excluded from heading
5603, HTSUSA.
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:
"[H]eading 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 other technical purposes;
(ii) Bolting cloth;
(iii) Straining cloth of a kind used in oil
presses or the like, of textile material or
human hair; [emphasis added]
(iv) Flat woven textile fabric with multiple warp
or weft, whether or not felted, impregnated or
coated, of a kind used in machinery or other
technical purposes;
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(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 paper-making or similar machines (for example, for pulp or asbestos-cement),
gaskets, polishing discs and other machinery parts).
The EN to heading 5911, HTSUSA, at page 822, describe
"straining cloths" as:
... (e.g., woven filter fabrics and [sic] needled
fabrics), whether
or not impregnated, of a kind used in oil presses or
for similar
filtering purposes (e.g., in sugar refineries or
breweries) and for
gas cleaning or similar technical applications in
industrial dust
collecting systems. The heading includes oil filtering
cloth,
certain thick heavy fabrics of wool or of other animal
hair, and
certain unbleached fabrics of synthetic fibers (e.g.,
nylon)
thinner than the foregoing but of a close weave and
having char-
acteristic rigidity. It also includes similar
straining cloth of human
hair. [emphasis added]
Heading 5911, HTSUSA, is not limited to woven fabrics for
technical use. The EN to heading 5603, HTSUSA, cited supra,
specifically state that nonwovens for technical use are
classifiable in heading 5911, HTSUSA, and are excluded from
heading 5603, HTSUSA.
Customs has classified various types of filter fabric,
similar to the instant merchandise, as technical use fabric. In
Headquarters Ruling Letter (HRL) 955244, dated April 4, 1994,
Customs classified nonwoven polyester filter mat used as an air
filter medium as a technical use fabric under subheading
5911.40.0000, HTSUSA.
As that merchandise was to be used in spray paint booth apparatus
for use in filtration, classification was deemed proper as a
technical use fabric. Similarly, in HRL 954138, dated June 15,
1993, Customs classified filtrete air filter media made of a
spunbonded nonwoven component and batting material as a technical
use fabric of subheading 5911.40.0000, HTSUSA. See also HRL
950167, dated March 13,
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1992, where Customs determined that a diffusion filter fabric
made of 100 percent polyester fibermat was classifiable as a
technical use fabric.
As the subject filter fabric is used for technical purposes
(i.e., for use in desalination, chemical and waste treatment
processes), and this type of process is identified in note 7 to
chapter 59 (i.e., straining or filtering liquids), classification
is proper under subheading 5911.40.0000, HTSUSA.
HOLDING:
The subject merchandise is properly classifiable under
subheading 5911.40.0000, HTSUSA, which provides for "[T]extile
products and articles, for technical uses, specified in note 7 to
Chapter 59: straining cloth of a kind used in oil presses or the
like, including that of human hair."
As the rate of duty under the classification indicated above
is more than the liquidated rate, you should deny the protest in
full. A copy of this decision should be furnished to the
Protestant with the CF 19 Notice of Action to satisfy the notice
requirement of Section 174.30(a), Customs Regulations.
In accordance with Section 3(A)(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed by your office to the
Protestant no later than 60 days from the date of this letter.
Any reliquidation of these entries in accordance with this
decision must be accomplished prior to mailing of the decision.
Sixty days from the date of the decision the Office of
Regulations and 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
Tariff Classification Appeals
Division