HQ 958415

March 26, 1996

CLA-2 RR:TC:TE 958415 SK

CATEGORY: Classification

TARIFF NO.: 5911.40.0000

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