HQ 953906: Protest and Application for Further Review #3801-3-100293; classification within subheading 9905.56.20, HTSUSA; "intended for use"; Application of Additional U.S. Rule of Interpretation 1

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 953906 

                          August 3, 1993

CLA-2 CO:R:C:T  953906  CMR

CATEGORY: Classification

TARIFF NO: 5603.00.9030 

District Director
U.S. Customs Service
Patrick N. McNamara Building
477 Michigan Avenue
Detroit, Michigan 48266

RE: Protest and Application for Further Review #3801-3-100293;
    classification within subheading 9905.56.20, HTSUSA;
    "intended for use"; Application of Additional U.S. Rule of
    Interpretation 1

Dear Sir:

     This is in response to the protest and application for
further review filed by XXXXXXX XXX XXXXXX XXXXXXXXXXXXX Co.
against your liquidation of an entry of polypropylene nonwoven
fabric as classifiable in subheading 5603.00.9030, HTSUSA,
dutiable at 7.5 percent ad valorem, and not in subheading
9905.56.20, HTSUSA, free of duty, as entered.

FACTS:

     The merchandise at issue is polypropylene nonwoven fabric
entered in roll stock form from Canada.  The fabric is coated in
the United States and then returned to Canada where it is used as
liner fabric in the manufacture of disposable diapers.

     The protestant contends that the nonwoven fabric is
classifiable in subheading 9905.56.20, HTSUSA, which provides
for:

     Nonwovens certified by the importer as intended for use as
     liners or transfer layers in the manufacture of disposable
     diapers (provided for in heading 5603.00)  [Emphasis added.]

ISSUE:

     Provided the ultimate "intended use" of the nonwoven fabric
at issue is as liners or transfer layers in disposable diapers,                                -2-


must the manufacture of the disposable diapers occur in the
United States in order for the nonwoven fabric to qualify for
classification in subheading 9905.56.20, HTSUSA?

LAW AND ANALYSIS:

     The classification of goods imported into the customs
territory of the United States is determined by the provisions of
the Harmonized Tariff Schedule of the United States Annotated
(HTSUSA).  Classification under the HTSUSA is governed by the
General Rules of Interpretation (GRIs).  GRI 1 provides that
"classification shall be determined according to the terms of the
headings and any relative section or chapter notes and, provided
such headings or notes do not otherwise require, according to
[the remaining GRIs taken in order]."

     Chapter 99 of the HTSUSA provides for, among other things,
temporary legislation and temporary modifications established
pursuant to trade legislation.  

     Subchapter V, Chapter 99, provides for temporary
modifications established pursuant to the United States-Canada
Free Trade Agreement.  Subheading 9905.56.20, HTSUSA, appears in
Subchapter V.

     The protestant argues that the language of subheading
9905.56.20, HTSUSA, only requires that the nonwoven fabric at
issue be "intended for use" as liners or transfer layers in the
manufacture of disposable diapers.  Protestant asserts that the
fabric at issue is intended for use as such, albeit in Canada. 
Protestant's position is that the language of 9905.56.20, HTSUSA,
does not require the manufacturing of the diapers occur in the
United States.  

     The language of the provision may not specify the required
location of the manufacturing, but as the tariff is for the
classification of goods imported into the customs territory of
the United States, classification based upon use, be it actual
use or principal use, is determined by the use of the good in the
United States.   

     Subheading 9905.56.20, HTSUSA, is an actual use provision. 
It requires a specified intended use of goods at the time of
importation.  

     U.S. Note 2 to Chapter 99 states:

     Unless the context requires otherwise, the general notes and
     rules of interpretation, the section notes, and the notes in
     chapters 1 through 98 apply to the provisions of this
     chapter.                               -3-


Additional U.S. Rule of Interpretation 1(b) states:

     In the absence of special language or context which
     otherwise requires--a tariff classification controlled by 
     the actual use to which the imported goods are put in the 
     United States is satisfied only if such use is intended at
     the time of importation, the goods are to be so used and
     proof thereof is furnished within 3 years after the date the
     goods are entered. 

Additionally, customs regulations provide at 19 CFR section
10.134 (19 Code of Federal Regulations 10.134):

       A showing of intent by the importer as to the actual use
     of imported merchandise shall be made by filing with the
     entry for consumption or for warehouse a declaration as to
     the intended use of the merchandise, or by entering the
     proper subheading of an actual use provision of the
     Harmonized Tariff Schedule of the United States (HTSUS) and
     the reduced or free rate of duty on the entry form.  Entry
     made under an actual use provision of the HTSUS may be
     construed as a declaration that the merchandise is entered
     to be used for the purpose stated in the HTSUSA, provided
     the district director is satisfied the merchandise will be
     so used.  *  *  *   
     
     The good at issue, nonwoven polypropylene fabric is entered
into the United States for the purpose of being coated and then
exported.  The intent at the time of importation is coating; the
intent upon exportation is use in the manufacture of disposable
diapers.  As it is the intended use of the merchandise at the
time of importation that determines classification in subheading
9905.56.20, HTSUSA, the merchandise at issue is not classifiable
therein.  It was properly classified in subheading 5603.00.9030, 
HTSUSA.

HOLDING:

     The protest should be denied.  A copy of this decision
should be attached to the Form 19, Notice of Action, to be sent
to the protestant.  

                                   Sincerely,



                                   John Durant, Director
                                   Commercial Rulings Division