Request for reconsideration of NY C83103; tariff classification of needleloom felt for use in the manufacture of footwear

HQ 962195 December 10, 1999 CLA2 RR:CR:TE 962195 jb CATEGORY: Classification TARIFF NO.: 5602.10.9090 Paula M. Connelly, Esq. Middleton & Shrull 44 Mall Road, Suite 208 Burlington, MA 01803-4530 RE: Request for reconsideration of NY C83103; tariff classification of needleloom felt for use in the manufacture of footwear Dear Ms. Connelly: This letter is in response to your request for reconsideration, on behalf of your client, New Balance Athletic Shoe, Inc., of New York Ruling Letter (NY) C83103, dated April 30, 1998, which classified a plastic coated textile under heading 5602, Harmonized Tariff Schedule of the United States (HTSUS). FACTS: The merchandise at issue, referenced style ML8008, was described in the original submission submitted by your client upon which NY C83103 was based, as a “needleloom felt” which consists of a substrate manufactured by web formulation and bonding of nylon man-made fibers to produce such a web. The web is then needlepunched, pressed and bonded by a polyurethane resin. The material is stated to be impregnated on both sides with additional polyurethane plastics. The overall composition of this material, which will be used as a liner for athletic footwear, is given as 60 percent nylon man-made fibers and 40 percent polyurethane plastic, by weight. In your opinion, in NY C83103 this merchandise was incorrectly classified by Customs in heading 5602, HTSUS, as needleloom felt. In support of this claim you now submit the results obtained from an independent laboratory which tested the subject merchandise. Based on that analysis you state that the subject merchandise is actually not a needleloom felt because the needling is complimentary to the main bonding mechanism of the cellular plastic binder. As such, you propose classification in heading 5603, HTSUS, which provides for nonwovens. Secondly, you state that as the subject material is coated with plastic on both sides, it meets the legal notes to chapter 56, HTSUS, which specifically excludes such materials from classification therein. Based on that legal note, you claim that the subject merchandise is classifiable in heading 3921, HTSUS, which provides for other plates, sheets, film, foil and strip, of plastics. Accordingly, you ask that Customs revoke the classification determination in NY C83103, and reclassify the merchandise in heading 3921, HTSUS, or in the alternative, in heading 5603, HTSUS. With respect to the independent laboratory report that was submitted by the importer, we note a few discrepancies. First, the submitted report identifies the sample which was analyzed as an “upper material”. The merchandise which was the subject of NY C83103 however, was referred to as a liner for athletic footwear. Secondly, the number which is referenced for the liner on the independent laboratory report does not correspond to any identifying number for the fabric at issue. Finally, although the independent laboratory report identifies the fabric merely as a “nylon/polyester” blend, when the subject merchandise was analyzed by the Customs Office of Laboratory and Scientific Services, those results reflect a fabric construction as 67 percent nylon/33 percent plastics. ISSUE: What is the proper classification for the subject merchandise? LAW AND ANALYSIS: Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied. There are three plausible headings which merit consideration in the classification of this merchandise. Heading 5603, HTSUS, which provides for, nonwovens, whether or not impregnated, coated, covered or laminated; heading 5602, HTSUS, which provides for, felt, whether or not impregnated, coated, covered or laminated; and heading 3921, HTSUS, which provides for, other plates, sheets, film, foil and strip, of plastics. Note 3(a) to chapter 56, HTSUS, states: Headings 5602 and 5603 cover respectively felt and nonwovens, impregnated, coated, covered or laminated with plastics or rubber whatever the nature of these materials (compact or cellular). Heading 5603 also includes nonwovens in which plastics or rubber forms the bonding substance.  Headings 5602 and 5603 do not, however, cover: (a) Felt impregnated, coated, covered or laminated with plastics or rubber, containing 50 percent or less by weight of textile material or felt completely embedded in plastics or rubber (chapter 39 or 40); (b) Nonwovens, either completely embedded in plastics or rubber, or entirely coated or covered on both sides with such materials, provided that such coating or covering can be seen with the naked eye with no account being taken of any resulting change in color (chapter 39 or 40); or (c) Plates, sheets or strip of cellular plastics or cellular rubber combined with felt or nonwovens, where the textile material is present merely for reinforcing purposes (chapter 39 or 40). The Explanatory Notes to the Harmonized Commodity Description and Coding System (EN) to heading 5602, HTSUS, state in pertinent part: This heading also includes needleloom felt which is made either: (1) by punching a sheet or web of textile staple fibres (natural or man-made), without a textile fabric base, with notched needles; or (2) by needling such textile fibres through a base of textile fabric or other material which is finally more or less hidden by the fibres. * * * Needled webs of staple fibres in which the needling is complementary to other types of bonding and needled filament-based webs are regarded as nonwovens (heading 56.03). As was explained in HQ 950989, dated September 10, 1992, in properly classifying this type of merchandise, what is critical is a fundamental understanding of how the fabric is constructed. That is, what process actually forms or creates the fabric independent of any subsequent finishing process? HQ 950989 stated that whereas a felt fabric may be formed by punching a sheet of staple fibres without a textile fabric base, with notched needles, in the case of nonwovens the production of such fabric is divided into three stages, that is, web formation, bonding and finishing. As such it is the culmination of these processes which gives the fabric its stability, and not principally the web formation. When the subject merchandise was analyzed by the Customs Office of Laboratory and Scientific Services, the results obtained were as follows: The sample is a needleloom felt which is coated, covered or laminated on both surfaces with a plastics material and has the following composition by weight: Nylon fibers 67.0 percent Plastics Material 33.0 percent Our analysis and observation indicates the following: The needleloom felt stayed intact and did not fall apart after removing the plastics material. The photo micrograph of the cross section of the Dupont #4 stained sample indicates the outer surface of the sample has substantial application of the plastics material, whereas the inner or core area of the sample has substantially less application of the plastics material. Photo micrograph of both the surfaces show the fibrous nature of the sample. Individual fibers can be seen in the inner layers. In our opinion the sample is a needleloom felt which is not completely embedded in plastics. Note: Our analysis showed that the felt is composed of 100 percent nylon fibers. Testing by Customs Science Services on their sample found the material to be composed of 51% nylon and 49% polyester by weight. The Customs laboratory report accurately reflects the physical nature of this merchandise: 1. The needleloom felt stayed intact after removal of the plastics material; 2. Photo micrographs reveal the fibrous nature of the sample. This description allows us to understand the physical properties of this merchandise. That is to say, since the felt stayed intact even after the plastic coating was removed, it proves that the needling actually formed the fabric, or in this case, the felt. As such, the needling is the main bonding method of this fabric and it is the polymer binder which is merely complementary to the main bonding. Additionally, as individual fibers could be seen in the inner layers of this fabric, the fabric is NOT completely embedded in plastics. As such, it is Customs position that once the web of fibers has been needled and compressed, it has become a felt and that the subsequent processing amounts only to a coating, covering or impregnation. Additionally, we emphasize that as felts are recognized as a subgroup of products known as nonwovens, as between competing provisions, heading 5602, HTSUS, is more specific than heading 5603, HTSUS. Accordingly, when we compare the headings which merit consideration in the classification of this merchandise, there is no need to go beyond GRI 1, as the subject merchandise is accurately described by the wording of heading 5602, HTSUS. Furthermore, as we have already stated that the subject merchandise is properly classified as a “felt” fabric, there is no need to discuss application of Note 3(b) to chapter 56, HTSUS, which is only pertinent to nonwovens. HOLDING: We affirm the classification rendered in NY C83103. The subject merchandise is classified in subheading 5602.10.9090, HTSUSA, which provides for, felt, whether or not impregnated, coated, covered or laminated: needleloom felt and stitch-bonded fiber fabrics: other: other. The applicable general column one rate of duty is 11.6 percent ad valorem and the quota category is 223. The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent negotiations and changes, we suggest that your client check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels), an issuance of the U.S. Customs Service, which is updated weekly and is available at the local Customs office. Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, your client should contact the local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements. Sincerely, John Durant, Director Commercial Rulings Division