HQ 952649

January 19, 1993

CLA-2 CO:R:C:T 952649 jb

CATEGORY: Classification

TARIFF NO.: 5603.00.9010

District Director of Customs

P.O. Box 2450

San Francisco, CA 94126

RE: Decision on Application for Further Review of Protest No.

280992-101138; merchandise not other wadding, heading 5601,

HTSUSA; proper classification as nonwoven textile fabric,

heading 5603, HTSUSA.

Dear Sir:

This is a decision on application for further review of a

protest timely filed on behalf of Cleasby Manufacturing Co. Inc.,

on June 23, 1992, against your decision regarding the

classification of a product described as \"black felt\". All

entries were liquidated on May 8, 1992.

FACTS:

As per laboratory results, the subject merchandise consists

of a sheet of nonwoven staple vegetable fibers (flax) embedded in

asphalt and rubber. It weighs .784 kilograms per square meter,

with a composition of 52 percent asphalt and rubber, and 48

percent vegetable fibers.

A letter accompanying the protest describes the manufacture

of the product as starting with jute and flax fibers being put

through a carding machine to fully open them. They are then fed

into a scutcher machine which forms the fibers into a loose lap

in the same way that cotton wadding used for surgical dressings

is made. After the lap leaves the scutcher machine, it is passed

between rollers coated with the asphalt or bitumen blend that

saturates and bonds the wadding.

The merchandise was originally entered under heading 5601,

Harmonized Tariff Schedule of the United States Annotated

(HTSUSA), which provides for other wadding. Customs classified

the merchandise under heading 5603, HTSUSA, as a nonwoven textile

fabric.

The protestant believes that the merchandise should be

classified as wadding based on a May 5, 1972 court decision

classifying similar merchandise. It is also argued by the

protestant that as he has been importing this type of merchandise

since 1960, the applicable rate of duty should be the rate in

effect prior to the HTSUSA.

ISSUE:

Is the submitted sample properly classifiable in heading

5601, HTSUSA as other wadding or in heading 5603, HTSUSA, as

nonwoven textile fabric?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in

accordance with the General Rules of Interpretation (GRI), taken

in order. GRI 1 requires that classification be determined

according to the terms of the headings and any relative section

or chapter notes, taken in order. Where goods cannot be

classified solely on the basis of GRI 1, the remaining GRI will

be applied, in the order of their appearance.

Though the laboratory report establishes the composition, by

weight, of the subject merchandise, it is deficient in its

description. The product is referred to as an \"asphalt

substance\" or \"bituminous compound\". In this type of product, a

form of rubber (not identified) is generally added to the asphalt

to render increased flexibility to the asphalt; the latter having

a tendency of being brittle in nature. The saturant remains the

asphalt, or bituminous compound, and as such, it is not a

question of the wadding and asphalt being \"embedded\" in the

rubber. To the contrary, the main component of the product

remains the asphalt.

Customs has previously determined that classification of

articles under the TSUS is not determinative of the proper

classification under the HTSUSA. Where there is a legally

required reason to deviate from past TSUS decisions, Customs will

do so, giving the appropriate reasoning under the HTSUSA. It has

been determined that though the meaning of a tariff term is a

question of law (Digital Equip. Corp. v. United States, 889 F.2d

267, 268 (Fed. Cir. 1989)), whether a particular article fits

within the meaning of a tariff term is a question of fact

(Brookside Veneers, Ltd. v. United States, 6 Fed. Cir. (T) 121,

124, 847 F.2d 786, cert. denied, 488 U.S. 943 (1988)).

Under the prior tariff, webs, wadding, felt and nonwovens\...

whether or not coated or filled, were grouped together under TSUS

items 355.02 through 355.25, relative to the component textile

material in chief value. As the vegetable fibers predominated in

value over the other components, the duty rate was always the

lowest in the group.

Under the present HTSUSA, wadding has its own heading under

heading 5601, HTSUSA. The fiber base of this product by its

method of manufacture, is wadding. The Explanatory Notes (EN) to

the Harmonized Commodity Description and Coding System, are the

official interpretation of the tariff at the international level.

The EN to heading 5601, HTSUSA state, in part:

1\. This Chapter does not cover:

\(a\) Wadding, felt or nonwovens, impregnated, coated or

covered with substances or preparations (for example,

perfumes or cosmetics of Chapter 33, soaps or

detergents of heading No. 34.01, polishes, creams or

similar preparations of heading No. 34.05, fabric

softeners of heading No. 38.09) where the textile

material is present merely as a carrying medium;

The EN to heading 5601, HTSUSA, further state, in part:

\(A\) WADDING OF TEXTILE MATERIALS AND ARTICLES THEREOF

It should, however, be noted that wadding treated with an

agglutinating substance and in which that substance has

penetrated into the inner layers is classified as a nonwoven

in heading 56.03, even if the fibers of the inner layers are

readily separable.

In the case of the subject article, the asphalt compound

thoroughly impregnates and saturates the vegetable wadding,

thereby acting as an agglutinating substance. Customs classified

similar merchandise in heading 5603, HTSUSA, in New York Ruling

(NY) 875489, dated November 9, 1992. In that ruling Customs

determined that \"because of the complete saturation, this

material is considered a nonwoven fabric for tariff purposes\".

Heading 5603, HTSUSA, provides for nonwovens, whether or not

impregnated, coated or covered or laminated. The EN to heading

5603, HTSUSA, state that nonwovens can be produced in various

ways and production can be conveniently divided into the three

stages: web formation, bonding and finishing. Among the methods

enumerated are:

I. Web formation

\(a\) by carding or air-laying fibres in order to form a

sheet. These fibres may be parallel, cross or random

oriented (dry-laid process);

II\. Bonding

\(a\) Chemical bonding in which the fibres are assembled

by means of a bonding substance. This may be done

by impregnation with an adhesive binder such as

rubber, gum, starch, glue or plastics, in solution

or emulsion, by heat treatment with plastics in

powder form, by solvents, etc. Binding fibres can

also be used for chemical bonding.

III\. Finishing

Nonwovens may be dyed, printed, impregnated, coated,

covered or laminated. Those covered on one or both

surfaces (by gumming, sewing or by any other process)

with textile fabric or with sheets of any other

material are classified in this heading only if they

derive their essential character from the nonwoven.

As these methods accurately describe the method of

manufacture of the subject merchandise, the merchandise was

correctly classified by the import specialist in subheading

5603.00.9010, HTSUSA, which provides for nonwoven textile

fabrics.

HOLDING:

The merchandise described as \"interleaved black felt\" was

properly classified in subheading 5603.00.9010, HTSUSA, providing

for nonwovens, whether or not impregnated, coated, covered, or

laminated, with material other than or in addition to rubber,

plastics, wood pulp or glass fibers. The applicable rate of duty

is 12.5 percent ad valorem.

As the rate of duty under the classification indicated above

is the same as the liquidated rate, you are instructed to deny

the protest in full. A copy of this decision should be appended

to the Form 19 Notice of action and furnished to the protestant.

Sincerely,

John Durant, Director