HQ 955991

February 17, 1995

CLA-2 CO:R:F 955991 ALS

CATEGORY: Classification

TARIFF NO.: 3921.19.0000

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