HQ 952938

August 4, 1993

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

CATEGORY: Classification

TARIFF NO.: 5911.10.2000

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\.

FACTS:

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.

ISSUE:

What is the proper classification for the laminated nonwoven

textile material used as separators in alkaline-electrolyte

electrochemical batteries?

LAW AND ANALYSIS:

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.\"

HOLDING:

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.

Sincerely,

John Durant, Director