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HQ 954822

DECEMBER 22, 1994

CLA-2: CO:R:C:T 954822 PR


TARIFF NO.: 5404.10.8080

District Director of Customs
#1 La Puntilla Street
San Juan, Puerto Rico 00901

RE: Request for Further Review of Protest 4909-93-100069 Dated June 22, 1993, Concerning the Classification of Hollow Fiber Membranes (Monofilaments)

Dear Sir:

This ruling is on the protest filed against your decision in the liquidation on May 21, 1993, of an entry covering hollow fiber membranes. Our decision on the matter follows.


The imported merchandise is stated in submitted literature to be "microporous polypropylene hollow fiber with a nominal outer diameter of 380 microns to be used in the fabrication of blood contact medical devices." They are not sterilized, measure 240 decitex, and are produced by extrusion in either Germany or Belgium. The importer states that the goods have no use other than to be used in oxygen therapy apparatus to oxygenate blood. The merchandise is imported on spools in 10 kilometer lengths--2.3 kilometers are used in each oxygenator. The trademark name of the goods imported from Germany is Oxyphan . A sample component of an oxygenator containing the hollow fiber membrane was submitted and it appears that the 2.3 km of hollow fiber membrane is a continuous single strand.


The merchandise was liquidated as entered, under the provision for other synthetic monofilaments of 67 decitex or more, not exceeding 1 mm in cross sectional dimension, in subheading 5404.10.8080, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). The importer states that the goods have no textile application and should be classified either (1) as parts of electro-medical apparatus, under subheading 9018.90.70, HTSUS; or (2) as parts of oxygen therapy or artificial respiration apparatus, under subheading 9019.20.00, HTSUS; or (3) as parts of other filtering and purifying apparatus for liquids.


Imported goods are classifiable according to the General Rules of Interpretation (GRI's) of the Harmonized Tariff Schedule of the United States (HTSUSA). GRI 1 provides that for legal purposes, classification shall first be determined according to the terms of the headings in the tariff and according to any pertinent section or chapter notes. It appears that GRI 1 governs the classification of the subject merchandise in this instance.

In Customs Headquarters Ruling (HQ) 950047, dated December 3, 1991, this office ruled that the subject merchandise is properly classifiable in subheading 5404.10.8080, HTSUSA. That ruling was predicated on HQ 086833, dated September 7, 1990. The importer is seeking to have these rulings revoked.

HQ 086833 involved the classification of goods described as follows:

The fiber membranes measure approximately nine inches in length, have no twist, and are hollow. The sample fibers are a synthetic monofilament of 100 percent polypropylene, measure 0.22 mm in cross section [sic]. The samples . . . have a decitex of 92 . . . the fibers are used in the medical profession to oxygenate blood, e.g., in artificial lungs .

In HQ 086833 the inquirer asserted that because of their special features the hollow filaments should not be considered textile articles. HQ 086833 examined the applicability of heading 3917, HTSUS, which provides for tubes, pipes, and hoses, of plastic, and determined that the merchandise which was the subject of that ruling was properly classifiable under subheading 5404.10.2090, HTSUSA.

The importer in the instant protest presents an issue not previously raised or considered in HQ 086833--is the imported merchandise classifiable as parts of apparatus. In support of its position, the importer cites (1) Benteler Industries, Inc. v. United States, 840 F.Supp. 912, Slip Op. 93-237 (Ct. of Int'l Trade, 1993), (2) Medline Industries, Inc. v. United States, Slip Op. 94-94 (Ct. of Int'l Trade, 1994), and (3) Customs proposed revocation of New York Ruling Letter (NY) 884900, published in 28 Cust. Bull. 46 (April 20, 1994).

Benteler, supra, concerned the classification of specially designed tubular steel sections which were imported in lengths of 6.09, 5.87, and 6.75 meters. Customs classified the merchandise under a provision for steel pipes and tubes. The importer claimed that it was classifiable under a provision for parts of motor vehicles. The court went through an extensive discussion of the specifications which the merchandise was required to meet, its intended use, and the processing to which it was subjected, and concluded:

. . . In light of all the evidence presented in this case, including those facts stipulated by the parties as to precise length, wall thickness, outer diameter, part number, car model and color code, the court finds that the seamless steel tubular sections are dedicated to a singular use and that an indiscernible number of articles could not be made from them upon entry. (at 917) That is, the sections at issue are advanced enough in manufacture to be identified as unfinished automotive parts.

In Jarvis Clark Co. v. United States, 733 F.2d, reh'g denied, 739 F.2d 628 (Fed. Cir. 1984), the court of appeals held that the "duty" of this Court of International Trade "is to find the correct result, by whatever procedure is best suited to the case at hand." 733 F.2d at 878 (italics added)

Medline, supra, involved the issue of whether "drawsheets" were classifiable bed sheets under a provision for other bed linen. The court noted that the "drawsheets" differed from bed sheets in both dimensions and usage. Accordingly, the court held that the goods were not classifiable as bed linen. The importer analogizes that holding to the instant merchandise because the fiber membranes are outside the scope of the common meaning of a "monofilament".

Customs' proposed revocation of New York Ruling Letter (NY) 884900, involving fishing line imported on spools, was cited because the fiber membranes are imported cut to length (10 km), imported on a spool, and packaged and labelled to clearly identify it as a part of an oxygenator.

Benteler, and a host of other cases dealing in this area, were decided under the TSUSA. The HTSUSA, which is an international based tariff, superceded the TSUSA on January 1, 1989. The law governing unfinished articles under the TSUSA is not the same as that under the HTSUSA. General Headnote 10(h), TSUS, merely states that a tariff provision covers an article whether finished or not finished. The TSUSA left up to the court and Customs to set the rules for deciding if an article had been sufficiently processed to be classified as a finished article. On the other hand, GRI 2(a), HTSUSA, though somewhat similar, contains the proviso that for an incomplete or unfinished article, the unfinished or incomplete article must have the "essential character" of the complete or finished article.

The Customs Service has recently ruled in Customs Headquarters Ruling (HQ) 956965, that billiard table fabric was classifiable as fabric and not as parts of billiard tables. HQ 956965 involved the same basic issue as here presented--whether the goods in question were classifiable as material or as parts of the article into which they were intended to be incorporated. In that ruling it was stated:

It should be noted that judicial authority in this area was decided under the prior tariff, the Tariff Schedules of the United States (TSUS). Therefore, these cases are not dispositive of the outcome under the HTSUS.

It is the view of the Customs Service that for textile materials, whether fabric, yarn, fibers or filaments, to be classified under the HTSUS as unfinished articles pursuant to GRI 2(a), the identity of the finished articles to be made from those materials must be fixed with certainty. No matter how dedicated to a particular use a material is, it does not have the essential character of a finished article (and remains mere material) if the dimensions of the article to be made from that material are not fixed and certain.

In the instant circumstance, the fiber membranes are imported in 10 kilometer lengths and each oxygenator contains 2.3 kilometers of the imported membrane. Obviously, each length of membrane can be used to supply from one to four oxygenators, with some membrane left over. Accordingly, the dimensions, and, therefore, the identity, of the article to be made from the imported goods is neither fixed nor certain and those goods may not be classified as unfinished articles.

The importer's assertions concerning the proposed revocation of NY 884900 are not pertinent. Although heading 5404 is located in what is generally regarded as the textile portion of the HTSUSA, there is no legal requirement that the goods classifiable in that section be used for textile purposes. In this regard, GRI 1, HTSUSA, specifically states, in pertinent part:

The table of contents, alphabetical index, and titles of sections, chapters and sub-chapters are provided for ease of reference only; for classification purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes . . .

Note 1 to Chapter 54, HTSUSA, wherein subheading 5404.10.8080 is located, states that the term "man-made fibers" means, with regard to synthetic fibers, "staple fibers and filaments of organic polymers produced by polymerization of organic monomers, such as polyamides, polyesters, polyurethanes or polyvinyl derivatives." (at pg. 54-1) There is no mention made of textile usage or textile identity. As if to emphasize this omission, Note 1 also states, "The terms 'man-made', 'synthetic' and 'artificial' shall have the same meanings when used in relation to 'textile materials'."

In addition, The Harmonized Commodity Description and Coding System, Explanatory Notes (EN), which is the official interpretation of the HTSUSA at the international level (for the 4 digit headings and the 6 digit subheadings), state, in describing the goods covered by heading 5404:

All these products are generally in long lengths, but remain classified here even if cut into short lengths and whether or not put up for retail sale, They are used according to their different characteristics in the manufacture of brushes, sports rackets, fishing lines, surgical sutures . . .
(at pg. 754)

The illustrations listed in the quoted portion of the EN are clearly not within the common conception of textile articles.

While the EN are not binding on the United States, they constitute the Customs Cooperation Council's (CCC) official interpretation of the Harmonized System and should be consulted for guidance. (Cong. Record, 4/20/88, at page H2021) The court, in Mita Copystar Corp. v. United States, Ct. Int'l Trade, Slip Op. 93-76 (May 20, 1993), stated that the purpose of the ENs "is to significantly clarify the reach of HTSUS subheadings, and to offer guidance in interpreting its subheadings."

On the basis of the above, we conclude that the fiber membranes were properly classified in subheading 5404.10.8080.


The protest should be denied in full.

In accordance with section 3A(11)(b) of Customs Directive Number 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be attached to the Customs Form 19, Notice of Action, and furnished to the protestant no later than 60 days from the date of this letter. 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 Ruling Module in ACS and to the public via the Diskette Subscription Service, Freedom of Information Act, and other public access channels.


John Durant, Director

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