HQ 955947

July 18, 1994

CLA-2 CO:R:C:M 955947 DWS

CATEGORY: Classification

TARIFF NO.: 7314.11.20

District Director

U.S. Customs Service

111 W. Huron Street, Room 603

Buffalo, NY 14202-2378

RE: Protest 0901-93-101118; Stainless Steel Woven Wire Cloth

Mesh; Diffuser Screen Component for Air Bag Systems;

Material Lengths; HQs 955346, 952938, and 084610; APTA;

19 CFR 10.84; General Note 5(a); 8708.99.50

Dear District Director:

The following is our decision regarding Protest 0901-93-

101118 concerning your action in classifying and assessing duty

on stainless steel woven wire cloth mesh under the Harmonized

Tariff Schedule of the United States (HTSUS).

FACTS:

The merchandise consists of stainless steel woven wire cloth

mesh, imported from Canada, for use as a diffuser screen

component in air bags for the U.S. manufacture of automobiles.

In Canada, the mesh wire is drawn from a steel rod to correct

diameter size, woven into cloth, and sliced into ribbons

constituting the diffuser screens. These ribbons must correspond

to precise specifications provided by the automotive manufacturer

in the U.S., as to the weave density and width of the mesh.

The weave density determines the mesh\'s ability to diffuse

the gases that explode within the air bag upon engagement of the

air bag system. Pursuant to federal motor vehicle safety

standards and the automotive manufacturer\'s specifications to

prevent injury to the vehicle\'s occupant, each air bag system

requires a specific weave density for the gases of the accelerant

used in the air bag system to diffuse in such a manner and at

such a speed that the air bag effectively expands within the time

permitted.

Each different model air bag system within the complete

range of motor vehicles requiring federally mandated driver side

air bag systems also must have a precise width of mesh. The

width of the mesh determines the area of diffusion covered by the

mesh when used as a diffuser screen in the air bag system. The

weave density and width of the mesh are mathematically and

scientifically calculated and tested by the air bag system

manufacturer to comply with federal and automotive industry

standards for air bag systems.

In Canada, the mesh, in sizes 18 and 30 mesh, is slit to the

exact specifications provided by the ultimate U.S. purchasers for

use as original equipment in the manufacture in the U.S. of a

motor vehicle. Once slit to size, the mesh has no practical or

potential use other than as a specific size diffuser screen for a

specific air bag system. The mesh is then wound in coils of

approximately 300 to 500 feet in length, with each roll being

sealed and wrapped to prevent any contamination, and imported

into the U.S.

After importation into the U.S., the mesh undergoes the

process of being cut to exact length, and its cut ends seam

welded for installation into an air bag system.

The stainless steel woven wire cloth mesh was entered under

subheading 8708.99.50, HTSUS, as parts of motor vehicles,

requesting duty-free treatment under the Automotive Products

Trade Act (APTA). The entry was liquidated on March 12, 1993,

under subheading 7314.11.20, HTSUS, as steel woven wire cloth.

Because it was the determination of your office that the

protestant satisfied the requirements under the U.S.-Canada Free-

Trade Agreement (CFTA), the entry was liquidated at the reduced

duty rate of 2.4 percent ad valorem. The protest was timely

filed on June 4, 1993.

ISSUES:

Whether the stainless steel woven wire cloth mesh, imported

into the U.S. in material lengths, is classifiable under

subheading 8708.99.50, as parts of motor vehicles, or under

subheading 7314.11.20, HTSUS, as steel woven wire cloth.

Whether the stainless steel woven wire cloth mesh is

eligible for duty-free treatment under the APTA.

LAW AND ANALYSIS:

CLASSIFICATION OF MERCHANDISE

Classification of merchandise under the HTSUS is in

accordance with the General Rules of Interpretation (GRI\'s),

taken in order. GRI 1 provides that classification is determined

according to the terms of the headings and any relative section

or chapter notes.

The protestant has established that the subject merchandise

is designed and manufactured solely for assembly into air bag

systems for inclusion in motor vehicles. Accordingly, as it is a

part of motor vehicles, it should be classifiable under

subheading 8708.99.50, HTSUS. The issue to be resolved is

whether the merchandise, even though its ultimate use is as parts

of motor vehicles, can be classifiable as such when imported in

material lengths.

In HQ 955346, dated February 9, 1994, which concerned the

classification of coils of stainless steel curved wire designed

for the manufacture of piston rings for automobile engines, we

stated that:

\[u\]nder a longstanding Customs principle, goods which are

material when entered are not classifiable as a particular

article unfinished. See Sandvik Steel, Inc. v. U.S.,

321 F.Supp. 1031, 66 Cust. Ct. 12, C.D. 4161 (1971) (shoe

die knife steel in coils and cutting rules in lengths,

without demarcations for cutting or bending, held to be

material rather than unfinished knives or cutting blades);

The Harding Co. v. U.S., 23 Cust. Ct. 250 (1936) (rolls of

brake lining held to be material because the identity of

the brake lining was not fixed with certainty); Naftone,

Inc. v. U.S., 67 Cust. Ct. 340, C.D. 4294 (1971) (rolls of

plastic film without demarcations for cutting despite

having only one use held to be insulating material).

See also HQ 952938, dated August 4, 1993, and HQ 084610,

dated May 17, 1990.

Although the use of the merchandise is not questioned,

because it is imported in material lengths, it is our position

that it cannot be classifiable under subheading 8708.99.50, as

unfinished parts of motor vehicles.

However, because subheading 7314.11.20, HTSUS, provides for

stainless steel woven wire cloth with mesh, in sizes from 12 to

36 mesh, we find that the merchandise, in sizes 18 and 30 mesh,

is specifically described, and is so classifiable, under that

provision.

APTA ELIGIBILITY

In part, section 10.84, Customs Regulations (19 CFR 10.84),

states:

10.84 Automotive vehicles and articles for use as original

equipment in the manufacture of automotive vehicles.

(a)(1) Certain motor vehicles and motor vehicle

equipment are eligible for duty-free entry as

proclaimed by the President under the

Automotive Products Trade Act of 1965. The

articles designated for such duty-free

treatment are defined in General Note

3(c)(ii), HTSUS (19 U.S.C. 1202).

Specifically, such articles are those

designated \[as \"Free (B)\"\] in the \"Special\"

subcolumn in Chapter 87, HTSUS, and must

qualify as \"Canadian articles\" as defined in

General Note 3(c)(iii)(A)(1). To claim

exemption from duty under the Automotive

Products Act of 1965, an importer must

establish, to the satisfaction of the

appropriate Customs officer, that the article

in question qualifies as a \"Canadian article\"

for purposes of General Note 3(c)(iii)(A)(1).

The Customs officer may accept as satisfactory

evidence a certificate executed by the importer

as set forth in paragraph (b) of the section,

subject to any verification he may deem

necessary. Alternatively, the Customs officer

may determine that under the circumstances of

the importation a certificate is

unnecessary. . .

(b)(6) A certificate conforming to paragraph (b)(1),

(2), or (3) of this section shall be accepted

as evidence of the facts alleged therein only

if:

\(i\) There is annexed thereto a copy of the

commercial invoice or bill of lading

covering the articles or other documentary

evidence which identifies the article to

which the certificate pertains,

\(ii\) The certificate is signed by the

manufacturer or producer of the article to

which it pertains, or by the person who

exported the articles from Canada, and

\(iii\) It clearly appears that such copy or other

documentary evidence was annexed to the

certificate when it was signed. . .

\(d\) When an importer makes an entry, or withdrawal

from warehouse, for consumption of articles for

use as \"original motor-vehicle equipment\" as

that term is defined in General Note 3(c)(iii),

HTSUS, he shall file in connection therewith his

declaration that the articles are being imported

for use as original equipment in the manufacture

in the United States of the kinds of motor

vehicles specified in the General Note and furnish

the name and address of the motor vehicle

manufacturer. A copy of the written order,

contract, or letter of intent shall be attached

to the importer\'s declaration except that if the

district director of Customs is satisfied that a

copy of the written order, contract, or letter of

intent will be made available by the importer or

ultimate consignee for inspection by customs

officials upon request during a period of 3 years

from the date of such entry or withdrawal from

warehouse, the production of such documents will

not be required. Proof of use need not be

furnished.

General note 5(a), HTSUS, states:

5\. Automotive Products and Motor Vehicles Eligible for

Special Tariff Treatment. Articles entered under the

Automotive Products Trade Act are subject to the

following provisions:

\(a\) Motor vehicles and original motor-vehicle equipment

which are Canadian articles and which fall in

provisions for which the rate of duty \"Free (B)\"

appears in the \"Special\" subcolumn may be entered

free of duty. As used in this note \--

\(i\) The term \"Canadian article\" means an article

which originates in Canada, as defined in general

note 12.

\(ii\) The term \"original motor-vehicle equipment\", as

used with reference to a Canadian article (as

defined above), means such a Canadian article

which has been obtained from a supplier in Canada

under or pursuant to a written order, contract or

letter of intent of a bona fide motor vehicle

manufacturer in the United States, and which is a

fabricated component originating in Canada, as

defined in general note 12, and intended for use

as original equipment in the manufacture in the

United States of a motor vehicle, but the term

does not include trailers or articles to be used

in their manufacture.

\(iii\) The term \"motor vehicle\", as used in this note,

means a motor vehicle of a kind described in

headings 8702, 8703 and 8704 of chapter 87

(excluding an electric trolley bus and a three-

wheeled vehicle) or an automobile truck tractor

principally designed for the transport of persons

or goods.

\(iv\) The term \"bona fide motor-vehicle manufacturer\"

means a person who, upon application to the

Secretary of Commerce, is determined by the

Secretary to have produced no fewer than 15

complete motor vehicles in the United States

during the previous 12 months, and to have

installed capacity in the United States to

produce 10 or more complete motor vehicles per

40-hour week. The Secretary of Commerce shall

maintain, and publish from time to time in the

Federal Register, a list of the names and

addresses of bona fide motor-vehicle

manufacturers.

As indicated by its legislative history, the APTA does not

require that a fabricated component be in a finished condition or

ready for assembly:

. . . although at the time of importation the component does

not have to be in a condition completely ready for assembly

without further fabrication, it must at a minimum be so far

processed as to be physically recognizable as a component

in an unfinished state. H. Rep. No. 537, 89th Cong., 1st

Sess. (1965), p. 27.

It is our position that the stainless steel woven wire cloth

mesh, in its condition as imported into the U.S., is \"so far

processed as to be physically recognizable as a component in an

unfinished state.\" Prior to importation into the U.S., the mesh

already meets automotive industry standards for diffuser screens

in air bag systems. The mesh also complies with federal mandated

safety requirements for driver side air bag systems. It is

obvious to us that the merchandise, even though imported in

material lengths, is solely dedicated for use as a diffuser

screen component in air bags for the U.S. manufacture of

automobiles. Therefore, it is our position that the merchandise

is original motor-vehicle equipment of Canadian origin eligible

for duty-free treatment under the APTA.

However, we have been apprised by your office that you have

not received the proper documentation (certified purchase orders)

necessary for the protestant to receive benefits under the APTA.

Counsel for the protestant has assured us that such documentation

will be sent to your office as soon as possible. Therefore, in

accordance with 19 CFR 10.84, the granting of APTA benefits to

the protestant should be made conditional upon your office

receiving satisfactory evidence that the goods are so entitled.

HOLDING:

The stainless steel woven wire cloth mesh is classifiable

under subheading 7314.11.20, HTSUS, steel woven wire cloth.

The merchandise may be eligible to receive duty-free

treatment under the APTA, provided the protestant is able to

furnish the necessary documentation.

Therefore, because reclassification of the merchandise as

indicated above will result in the same rate of duty as claimed,

you are instructed to conditionally allow the protest in full.

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

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

Directive, this decision, together with the Customs Form 19,

should be mailed 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 the 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, Lexis, Freedom of Information Act, and

other public access channels.

Sincerely,

John Durant, Director

Commercial Rulings Division