HQ 952649: 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.

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 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