HQ 954822

DECEMBER 22, 1994

CLA-2: CO:R:C:T 954822 PR

CATEGORY: Classification

TARIFF NO.: 5404.10.8080

District Director of Customs

#1 La Puntilla Street

San Juan, Puerto Rico 00901

RE: Request for Further Review of Protest 4909-93-100069

Dated June 22, 1993, Concerning the Classification of

Hollow Fiber Membranes (Monofilaments)

Dear Sir:

This ruling is on the protest filed against your decision in the

liquidation on May 21, 1993, of an entry covering hollow fiber

membranes. Our decision on the matter follows.

FACTS:

The imported merchandise is stated in submitted literature to be

\"microporous polypropylene hollow fiber with a nominal outer

diameter of 380 microns to be used in the fabrication of blood

contact medical devices.\" They are not sterilized, measure 240

decitex, and are produced by extrusion in either Germany or

Belgium. The importer states that the goods have no use other

than to be used in oxygen therapy apparatus to oxygenate blood.

The merchandise is imported on spools in 10 kilometer lengths\--2.3
kilometers are used in each oxygenator. The trademark name

of the goods imported from Germany is Oxyphan . A sample

component of an oxygenator containing the hollow fiber membrane

was submitted and it appears that the 2.3 km of hollow fiber

membrane is a continuous single strand.

ISSUE:

The merchandise was liquidated as entered, under the provision

for other synthetic monofilaments of 67 decitex or more, not

exceeding 1 mm in cross sectional dimension, in subheading

5404.10.8080, Harmonized Tariff Schedule of the United States

Annotated (HTSUSA). The importer states that the goods have no

textile application and should be classified either (1) as parts

of electro-medical apparatus, under subheading 9018.90.70, HTSUS;

or (2) as parts of oxygen therapy or artificial respiration

apparatus, under subheading 9019.20.00, HTSUS; or (3) as parts of

other filtering and purifying apparatus for liquids.

LAW AND ANALYSIS:

Imported goods are classifiable according to the General Rules of

Interpretation (GRI\'s) of the Harmonized Tariff Schedule of the

United States (HTSUSA). GRI 1 provides that for legal purposes,

classification shall first be determined according to the terms

of the headings in the tariff and according to any pertinent

section or chapter notes. It appears that GRI 1 governs the

classification of the subject merchandise in this instance.

In Customs Headquarters Ruling (HQ) 950047, dated December 3,

1991, this office ruled that the subject merchandise is properly

classifiable in subheading 5404.10.8080, HTSUSA. That ruling was

predicated on HQ 086833, dated September 7, 1990. The importer

is seeking to have these rulings revoked.

HQ 086833 involved the classification of goods described as

follows:

The fiber membranes measure approximately nine inches

in length, have no twist, and are hollow. The sample

fibers are a synthetic monofilament of 100 percent

polypropylene, measure 0.22 mm in cross section \[sic\].

The samples . . . have a decitex of 92 . . . the

fibers are used in the medical profession to oxygenate

blood, e.g., in artificial lungs .

In HQ 086833 the inquirer asserted that because of their special

features the hollow filaments should not be considered textile

articles. HQ 086833 examined the applicability of heading 3917,

HTSUS, which provides for tubes, pipes, and hoses, of plastic,

and determined that the merchandise which was the subject of that

ruling was properly classifiable under subheading 5404.10.2090,

HTSUSA.

The importer in the instant protest presents an issue not

previously raised or considered in HQ 086833\--is the imported

merchandise classifiable as parts of apparatus. In support of

its position, the importer cites (1) Benteler Industries, Inc. v.

United States, 840 F.Supp. 912, Slip Op. 93-237 (Ct. of Int\'l

Trade, 1993), (2) Medline Industries, Inc. v. United States, Slip

Op. 94-94 (Ct. of Int\'l Trade, 1994), and (3) Customs proposed

revocation of New York Ruling Letter (NY) 884900, published in 28

Cust. Bull. 46 (April 20, 1994).

Benteler, supra, concerned the classification of specially

designed tubular steel sections which were imported in lengths of

6.09, 5.87, and 6.75 meters. Customs classified the merchandise

under a provision for steel pipes and tubes. The importer

claimed that it was classifiable under a provision for parts of

motor vehicles. The court went through an extensive discussion

of the specifications which the merchandise was required to meet,

its intended use, and the processing to which it was subjected,

and concluded:

. . . In light of all the evidence presented in this

case, including those facts stipulated by the parties

as to precise length, wall thickness, outer diameter,

part number, car model and color code, the court finds

that the seamless steel tubular sections are dedicated

to a singular use and that an indiscernible number of

articles could not be made from them upon entry. (at

917\) That is, the sections at issue are advanced

enough in manufacture to be identified as unfinished

automotive parts.

In Jarvis Clark Co. v. United States, 733 F.2d, reh\'g

denied, 739 F.2d 628 (Fed. Cir. 1984), the court of

appeals held that the \"duty\" of this Court of

International Trade \"is to find the correct result, by

whatever procedure is best suited to the case at hand.\"

733 F.2d at 878 (italics added)

Medline, supra, involved the issue of whether \"drawsheets\" were

classifiable bed sheets under a provision for other bed linen.

The court noted that the \"drawsheets\" differed from bed sheets in

both dimensions and usage. Accordingly, the court held that the

goods were not classifiable as bed linen. The importer

analogizes that holding to the instant merchandise because the

fiber membranes are outside the scope of the common meaning of a

\"monofilament\".

Customs\' proposed revocation of New York Ruling Letter (NY)

884900, involving fishing line imported on spools, was cited

because the fiber membranes are imported cut to length (10 km),

imported on a spool, and packaged and labelled to clearly

identify it as a part of an oxygenator.

Benteler, and a host of other cases dealing in this area, were

decided under the TSUSA. The HTSUSA, which is an international

based tariff, superceded the TSUSA on January 1, 1989. The law

governing unfinished articles under the TSUSA is not the same as

that under the HTSUSA. General Headnote 10(h), TSUS, merely

states that a tariff provision covers an article whether finished

or not finished. The TSUSA left up to the court and Customs to

set the rules for deciding if an article had been sufficiently

processed to be classified as a finished article. On the other

hand, GRI 2(a), HTSUSA, though somewhat similar, contains the

proviso that for an incomplete or unfinished article, the

unfinished or incomplete article must have the \"essential

character\" of the complete or finished article.

The Customs Service has recently ruled in Customs Headquarters

Ruling (HQ) 956965, that billiard table fabric was classifiable

as fabric and not as parts of billiard tables. HQ 956965

involved the same basic issue as here presented\--whether the

goods in question were classifiable as material or as parts of

the article into which they were intended to be incorporated. In

that ruling it was stated:

It should be noted that judicial authority in this area

was decided under the prior tariff, the Tariff

Schedules of the United States (TSUS). Therefore, these

cases are not dispositive of the outcome under the

HTSUS.

It is the view of the Customs Service that for textile materials,

whether fabric, yarn, fibers or filaments, to be classified under

the HTSUS as unfinished articles pursuant to GRI 2(a), the

identity of the finished articles to be made from those materials

must be fixed with certainty. No matter how dedicated to a

particular use a material is, it does not have the essential

character of a finished article (and remains mere material) if

the dimensions of the article to be made from that material are

not fixed and certain.

In the instant circumstance, the fiber membranes are imported in

10 kilometer lengths and each oxygenator contains 2.3 kilometers

of the imported membrane. Obviously, each length of membrane can

be used to supply from one to four oxygenators, with some

membrane left over. Accordingly, the dimensions, and, therefore,

the identity, of the article to be made from the imported goods

is neither fixed nor certain and those goods may not be

classified as unfinished articles.

The importer\'s assertions concerning the proposed revocation of

NY 884900 are not pertinent. Although heading 5404 is located in

what is generally regarded as the textile portion of the HTSUSA,

there is no legal requirement that the goods classifiable in that

section be used for textile purposes. In this regard, GRI 1,

HTSUSA, specifically states, in pertinent part:

The table of contents, alphabetical index, and titles

of sections, chapters and sub-chapters are provided for

ease of reference only; for classification purposes,

classification shall be determined according to the

terms of the headings and any relative section or

chapter notes . . .

Note 1 to Chapter 54, HTSUSA, wherein subheading 5404.10.8080 is

located, states that the term \"man-made fibers\" means, with

regard to synthetic fibers, \"staple fibers and filaments of

organic polymers produced by polymerization of organic monomers,

such as polyamides, polyesters, polyurethanes or polyvinyl

derivatives.\" (at pg. 54-1) There is no mention made of textile

usage or textile identity. As if to emphasize this omission,

Note 1 also states, \"The terms \'man-made\', \'synthetic\' and

\'artificial\' shall have the same meanings when used in relation

to \'textile materials\'.\"

In addition, The Harmonized Commodity Description and Coding

System, Explanatory Notes (EN), which is the official

interpretation of the HTSUSA at the international level (for the

4 digit headings and the 6 digit subheadings), state, in

describing the goods covered by heading 5404:

All these products are generally in long lengths, but

remain classified here even if cut into short lengths

and whether or not put up for retail sale, They are

used according to their different characteristics in

the manufacture of brushes, sports rackets, fishing

lines, surgical sutures . . .

(at pg. 754)

The illustrations listed in the quoted portion of the EN are

clearly not within the common conception of textile articles.

While the EN are not binding on the United States, they

constitute the Customs Cooperation Council\'s (CCC) official

interpretation of the Harmonized System and should be consulted

for guidance. (Cong. Record, 4/20/88, at page H2021) The court,

in Mita Copystar Corp. v. United States, Ct. Int\'l Trade, Slip

Op. 93-76 (May 20, 1993), stated that the purpose of the ENs \"is

to significantly clarify the reach of HTSUS subheadings, and to

offer guidance in interpreting its subheadings.\"

On the basis of the above, we conclude that the fiber membranes

were properly classified in subheading 5404.10.8080.

HOLDING:

The protest should be denied in full.

In accordance with section 3A(11)(b) of Customs Directive

Number 099 3550-065, dated August 4, 1993, Subject: Revised

Protest Directive, this decision should be attached to the

Customs Form 19, Notice of Action, and furnished to the

protestant no later than 60 days from the date of this letter.

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 Ruling Module in

ACS and to the public via the Diskette Subscription Service,

Freedom of Information Act, and other public access channels.

Sincerely,

John Durant, Director

Commercial Rulings Division