us-cbp-cross-rulings-hq-950989•HQ 950989: HRL 087523 modified. Application for Further Review ofProtest 3801-9-002667. Felt; nonwoven; bonding; finishing;floor; covering; automobile; underlay
HQ 950989: HRL 087523 modified. Application for Further Review ofProtest 3801-9-002667. Felt; nonwoven; bonding; finishing;floor; covering; automobile; underlay
us-cbp-cross-rulings-hq-950989HQ 950989: HRL 087523 modified. Application for Further Review ofProtest 3801-9-002667. Felt; nonwoven; bonding; finishing;floor; covering; automobile; underlayGuidance
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 950989
September 10, 1992
CLA-2 CO:R:C:T 950989 HP
CATEGORY: Classification
TARIFF NO.: 5602.10.9090
Mr. William L. Morandini
District Director
U.S. Customs Service
Patrick V. McNamara Building
477 Michigan Avenue
Detroit, MI 48266
RE: HRL 087523 modified. Application for Further Review of
Protest 3801-9-002667. Felt; nonwoven; bonding; finishing;
floor; covering; automobile; underlay
Dear Mr. Morandini:
This is in reply to your Memorandum of August 17, 1990,
forwarding an Application for Further Review of Protest No. 3801-
9-002667.
FACTS:
The material at issue is composed of garnetted vegetable and
man-made fibers, carded, lapped and needle punched. The material
then has sizing (aqueous acrylic emulsion) applied to either or
both sides via a foamer. Finally, the sizing is cured by either
an oven or a hot roll heated to approximately 400 degrees
Fahrenheit. Protestant states that the merchandise is chiefly
used as an automotive floor covering underlay.
Protestant attempted entry of this merchandise under heading
5603, HTSUSA, as a nonwoven. Customs disagreed, classifying the
material under heading 5602, HTSUSA, as felt.
In HRL 087523 of October 11, 1990, we classified
substantially similar merchandise while responding to an
Application for Further Review of Protest #0901-9-700975.
Therein, we elaborated upon the description of the manufacturing
processes as follows: The fibers are blended based upon the
grade of material and then are processed
through garnetts where the fibers are laid in
a parallel process into a continuous web
formation. The web is then laid by cross
lappers onto a main apron in a "Z" pattern.
The apron takes the web to a needle loom
where it is needled and further compressed.
The web continues through a foamer where
sizing, an emulsion consisting of acrylic
polymer, residual monomers and water, is
applied to the bottom layer of the web.
After exiting the foamer, the web passes over
a gas fired hot roll at approximately 400
degrees Fahrenheit driving the water
contained in the sizing out through the top
of the web. In this manner, the sizing is
spread throughout the bottom layer of the
web, thereby locking the fibers in place.
~ ~ ~
The needled padding is also manufactured
on [a] one production lone [sic.] using an
air laid process, which replaces the garnetts
in the web laying stage. The hot roll is
replaced on [the] one production line by the
use of an oven.
ISSUE:
Whether the instant merchandise is considered a felt or a
nonwoven under the HTSUSA?
LAW AND ANALYSIS:
Heading 5602, HTSUSA, covers felt, whether or not
impregnated, coated, covered or laminated. The Explanatory Notes
(EN) to the Harmonized Commodity Description and Coding System
(Harmonized System) constitute the official interpretation of the
scope and content of the tariff at the international level.
While not legally binding, they do represent the considered views
of classification experts of the Harmonized System Committee. It
has therefore been the practice of the Customs Service to follow,
whenever possible, the terms of the Explanatory Notes when
interpreting the HTSUSA. The EN to this heading states:
This heading also includes needleloom felt which is made ...:
(1) by punching a sheet or web of textile
staple fibres (natural or man-made),
without a textile fabric base, with
notched needles....
~ ~ ~
The needleloom technique makes it possible
to obtain felt from non-felting vegetable
fibres (for example, jute) or man-made
fibres.The material at issue is therefore
prima facie classifiable within heading 5602,
HTSUSA, as needleloom felt.
Heading 5603, HTSUSA, provides for nonwovens, whether or not
impregnated, coated, covered or laminated The EN to this heading
states: A nonwoven is a sheet or web of
predominantly textile fibres oriented
directionally or randomly and bonded. These
fibres may be of natural or man-made origin.
They may be staple fibres (natural or man-
made) or man-made filaments or may be formed
in situ.
Nonwovens can be produced in various ways
and production can be conveniently divided
into the three stages: web formation, bonding
and finishing.
I. Web formation
Four basic methods exist:
~ ~ ~
(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
After web formation the fibres are
assembled throughout the thickness
throughout the thickness and width of
the web (continuous method) or in spots
or patches (intermittent method).
This bonding can be divided into
three types:
(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.
(b) Thermal bonding, in which the
fibres are assembled by submitting
them to a heat (or ultrasonic)
treatment, passing the web through
ovens or between heated rollers
(area bonding) or through heated
embossing calendars (point
bonding). Binding fibres can also
be used for thermal bonding.
(c) Mechanical bonding, in which the
webs are strengthened by physical
entanglement of the constituent
fibres. This may be achieved by
means of ... needling....
~ ~ ~
These various bonding processes may also
frequently be combined.
III. Finishing
Nonwovens may be dyed, printed,
impregnated, coated, covered or laminated.
The material at issue is also prima facie classifiable
within heading 5603, HTSUSA, as a nonwoven. Further analysis is
therefore required to differentiate between needleloom felt and
mechanically bonded nonwovens. In its description of mechanical
bonding, the Explanatory Note to heading 5603, HTSUSA, continues
by stating that "[h]owever, needled products regarded as
nonwovens are restricted to: ... staple fibre webs where the
needling is complementary to other types of bonding." Emphasis
added. See also EN to heading 5602 ("needled webs of staple
fibres in which the needling is complementary to other types of
bonding ... are regarded as nonwovens"); EN to heading 5603
("[t]he heading ... excludes: ... needleloom felts (heading
56.02)"). If the above-described sizing application is
considered a bonding process, as the protestant argues, the
needle punching mechanical bonding would be complementary to the
chemical bonding, and this merchandise would be classified as a
nonwoven.
In HRL 087523, supra, this merchandise was ruled to be a
nonwoven:
[t]he application of sizing to the
needled product imparts dimensional stability
without which the web would be deformed in
length and width. Sizing also adds
substantially to the web's tensile strength.
Attached to [the importer's] submission ...
is a comparison of sized and unsized material
which indicates that the addition of sizing
effectively doubles the article's tensile
strength in both the warp and weft, without
adding significantly to the weight of the
product.
~ ~ ~
Without sizing, the padding would not
conform to the required automotive company
specifications. In view of this, Customs
considers the needling to be complementary to
the chemical bond produced by the polymer in
that the polymer not only supplants the
needling but is also an integral part of the
manufacturing process.
You and the National Import Specialist argue against this
position, opining that the application of the sizing is merely a
finishing/drying operation for the felt. We agree. Both
Explanatory Notes specifically require the needling to be
complementary to a second bonding process. Bonding assembles the
fibers throughout the thickness of the web; without the bonding
stage, fibers would not stay together to form either a felt or a
nonwoven. The sizing is applied only to one or both surfaces,
and is barely absorbed beyond those surfaces. While this
application admittedly imparts significant stability and
strength, it does so as a finishing operation. The sizing on its
own, unlike the needling, would not hold the web together. It is
this failure to bond the entire web, rather than merely the outer
surface(s), that causes us to rule that the sizing is not a
bonding process. Since only one bonding process exists
(needling), the Explanatory Notes clearly support a finding that
this needled web of staple fibers to be classified as a felt.
HRL 087523 is modified accordingly.
HOLDING:
As a result of the foregoing, the instant merchandise is
classified under heading 5602.10.9090, HTSUSA, textile category
223, as felt, whether or not impregnated, coated, covered or
laminated, needleloom felt and stitch-bonded fiber fabrics,
other, other. Articles which meet the definition of "goods
originating in the territory of Canada" (see General Note
3(c)(vii)(B), HTSUSA) are subject to reduced rates of duty under
the United States-Canada Free Trade Agreement Implementation Act
of 1988. If the merchandise constitutes "goods originating in
the territory of Canada," the applicable rate of duty is
currently 7.5 percent ad valorem; otherwise, the general rate of
duty is currently 12.5 percent ad valorem.
In order to insure uniformity in Customs classification of
this merchandise and eliminate uncertainty, we are modifying HRL
087523 of October 11, 1990, pursuant to 19 C.F.R. 177.9(d)(1)
(1989), to reflect the above classification effective with the
date of this letter. This letter is not to be applied
retroactively to HRL 087523 (19 C.F.R. 177.9(d)(2) (1989)) and
will not, therefore, affect the transaction for the importation
of merchandise under that ruling. However, for the purposes of
future transactions in merchandise of this type, including that
for which the present Application for Further Review of Protest
is requested, HRL 087523 will not be valid precedent. We
recognize that pending transactions may be adversely affected by
this modification, in that current contracts for importations
arriving at a port subsequent to the release of HRL 950989 will
be classified under the new ruling. If such a situation arises,
the importer may, at his or her discretion, notify this office
and apply for relief from the binding effects of the new ruling
as may be dictated by the circumstances. However, please advise
the importer that in some instances involving import restraints,
such relief may require separate approvals from other government
agencies.
You are instructed to deny the Protest in Full. A copy of
this decision should be forwarded to the protestant, or
protestant's counsel, as part of the Notice of Action.
Sincerely,
John Durant, Director
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