CLA-2 RR:CR:TE 965659 mbg
Port Director
U.S. Customs Service
Port of Cleveland
6747 Engle Road
Middleburg Heights, OH 44130
RE: Decision on Application for Further Review of Protest No.
4102-01-100037, classification of textile materials for technical use
Dear Port Director:
This is a decision on an application for further review of a protest timely filed by Toyobo Sterns Co., Ltd. of Cincinnati, Ohio. Counsel for Protestant filed Customs Form 19 (“PROTEST”), dated October 17, 2001, against your decision regarding the classification under the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”) for a textile material for technical use.
FACTS:
Protestant has provided that the merchandise at issue consists of air filtering materials for use in automotive engines. The materials are imported in two different grades which are designated as “241-USNV” and “Bonden 257.” Both are made in Japan of man-made nonwoven fabric with the same appearance and texture, however, the 241-USNV material is produced using an adhesive or chemical bonding process while the Bonden 257 material is produced using a thermal bonding process. During the manufacturing process, an acrylic binder is added to the filter materials to act as a stiffening agent. The materials are imported into the U.S. in continuous rolls, are not laminated and weigh more than 150 grams per square meter. The imported merchandise is used exclusively to manufacture air filters for use in engines.
Protestant has provided that the manufacture of the merchandise referred to as 241-USNV is produced in two primary stages consisting of web-formation and bonding. The process entails the use of compressed bales of rayon, polyester and acrylic staple fibers of differing deniers which are used in a dry-laid carding process to form a web. Protestant has provided a detailed description of a typical nonwoven bonding process which is utilized in the construction of the subject merchandise.
Protestant has also provided that the manufacture of the merchandise referred to as Bonden 257 is produced in two primary stages consisting of web-formation and bonding. The process begins with compressed bales of either single polymer polyester fibers or bicomponent polyester fibers of differing deniers which are used in a dry-laid carding process to form a web. Protestant has also provided a detailed description of a typical nonwoven bonding process which is utilized in the construction of the subject merchandise.
Protestant provides that Toyobo sells the completed non-woven materials to an automotive parts manufacturer for use in the production of automobile air filters and therefore the material must be pleated into a rectangular or round accordion style shape. To accomplish this, the material is cut to length and width and fed through a pleating machine that utilizes heat and pressure to form the actual pleats which is then framed with a hard plastic form.
Protestant contests Customs classification of the subject merchandise in heading 5911, HTSUSA as a material for technical use and contends that such classification is improper because the subject merchandise is imported in continuous rolls and therefore cannot be subject to Legal Note 7 (b) which applies to heading 5911. Furthermore, Protestant claims that the merchandise is not properly classified as a textile material for technical use because the subject merchandise is not woven and is used for the filtration of air rather than for separating solids from liquid as other filtration devices previously classified in heading 5911, HTSUSA. Protestant asserts that classification of the subject merchandise is proper under heading 5603, HTSUSA, as a nonwoven material.
ISSUE:
What is the proper classification for the subject merchandise under the HTSUSA?
LAW AND ANALYSIS:
I. CLASSIFICATION UNDER THE HTSUSA
Classification of goods under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides, in part, that classification decisions are to be “determined according to the terms of the headings and any relative section or chapter notes.” In the event that 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.
The Harmonized Commodity Description and Coding System Explanatory Notes (“EN”) represent the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. The EN, although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The two headings under consideration for the subject Protest are heading 5603, HTSUSA, which provides for, nonwovens, whether or not impregnated, coated, covered or laminated; and heading 5911, HTSUSA, which provides for textile products for technical uses.
Determination of the HTSUSA classification of the subject merchandise in either of the subject headings requires an understanding of terminology which is germane to the issue and utilized by the HTSUSA. It is a well established tenet of customs law that tariff terms are construed in accordance with their common and commercial meanings and that the common meaning of a tariff term is a question of law. Toyota Motor Sales, U.S.A., Inc. v. United States, 7 Ct. Int’l Trade 178, 182, 585 F.Supp 649 (1984), aff’d, 753 F.2d 1061 (Fed.Cir. 1985). Essential to the determination of this classification issue is an understanding of the term “in the piece” which is commonly used in the HTSUSA and the textile industry and which Protestant claims renders classification in heading 5911 not applicable for classification of the subject merchandise because the material is imported in “continuous rolls.”
Piece- A standard length of fabric, such as 40, 60, 80, or 100 yards. Dictionary of Fiber and Textile Technology, 140 (7th
ed. 1999).
Piece- A specified length of goods as rolled from loom for dying or finishing: 60 yards, 30 yards, etc. Buying “by the piece” or “half piece” means buying a part or all of the full length as determined in the manufacture of the various fabrics. A Dictionary of Costume and Fashion, Mary Brooks Picken, 250 (1985).
Piece- A standard length of woven fabric varying from 24 yards to 100 yards according to type of fabric. Fairchild’s Dictionary of Textiles, 435 (2nd ed. 1970).
Protestant’s assertion that the importation of the merchandise in rolls affects classification is incorrect. The term “in the piece” actually refers to importation of textiles in “continuous rolls” and is applicable to the subject merchandise whether classified in either heading 5603 or 5911, HTSUSA.
A. HEADING 5603, HTSUSA
Legal Note 3 to chapter 56, HTSUSA, states:
Heading 5603 cover[s] 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.
Heading 5603 do[es] 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 5603, HTSUSA, state in pertinent part:
Except where they are covered more specifically by other headings in the Nomenclature, the heading covers nonwovens in the piece, cut to length or simply cut to rectangular (including square) shape from larger pieces without other working, whether or not presented folded or put up in packings (e.g., for retail sale). These include: facing webs (overlay) for incorporation in laminated plastics; top-sheets for the manufacture of disposable baby napkins (diapers) or sanitary towels; fabrics for the manufacture of protective clothing or garment linings; sheets for filtering liquids or air, for use as stuffing materials, for sound insulation, for filtration or separation in road building or other civil engineering works; substrates for manufacturing bituminous roofing fabrics; primary or secondary backing for tufted carpets, etc.
The EN to heading 5603, HTSUSA, further state that nonwovens can be produced in various ways and production can be conveniently divided into the three stages: web formation, bonding and finishing.
Additionally, the EN for heading 5603 states:
This heading also excludes:
(ij) Nonwovens for technical uses, of heading 5911.
B. HEADING 5911, HTSUSA
Protestant contends that heading 5911, HTSUSA, is not applicable for the subject merchandise because the materials are used in automobile air filters to separate solids from air rather than solids from liquids and therefore are not appropriate for classification as materials for technical use.
Heading 5911, HTSUSA, provides for textile products and articles for technical uses so long as they are specified in Legal Note 7 to Chapter 59, HTSUSA. Legal Note 7 to Chapter 59 reads:
Heading 5911 applies to the following goods, which do not fall in any other heading of section XI:
(a) Textile products in the piece, cut to length or simply cut to rectangular (including square) shape (other than those having the character of the products of headings 5908 to 5910), the following only:
(i) Textile fabrics, felt and felt-lined woven fabrics, coated, covered or laminated with rubber, leather or other material, of a kind used for card clothing, and similar fabrics of a kind used for other technical purposes, including narrow fabrics made of velvet impregnated with rubber, for covering weaving spindles (weaving beams);
(ii) Bolting cloth;
(iii) Straining cloth of a kind used in oil presses or the like, of textile material or human hair;
(iv) Flat woven textile fabrics with multiple warp or weft, whether or not felted, impregnated or coated, of a kind used in machinery or for other technical purposes;
(v) Textile fabric reinforced with metal, of a kind used for technical purposes;
(vi) Cords, braids and the like, whether or not coated, impregnated or reinforced with metal, of a kind used in industry as packing or lubricating materials;
(b) Textile articles (other than those of headings 5908 to 5910) of a kind used for technical purposes (for example, textile fabrics and felts, endless or fitted with linking devices, of a kind used in papermaking or similar machines (for example, for pulp or asbestos-cement), gaskets, washers, polishing discs and other machinery parts).
Although the term “for technical uses” is not defined in the section or chapter notes, the ENs to heading 5911, HTSUSA, state that “textile products and articles of this heading present particular characteristics which identify them as being for use in various types of machinery, apparatus, equipment or instruments or as tools or parts of tools.”
However, the ENs to heading 5911 do provide definitions for various types of textile articles and products used for specific technical textile purposes. The EN to heading 5911, HTSUSA, describe "straining cloths" as:
(e.g., woven filter fabrics and needled filter fabrics), whether or not impregnated, of a kind used in oil presses or for similar filtering purposes (e.g., in sugar refineries or breweries) and for gas cleaning or similar technical applications in industrial dust collecting systems. The heading includes oil filtering cloth, certain thick heavy fabrics of wool or of other animal hair, and certain unbleached fabrics of synthetic fibres (e.g, nylon) thinner than the foregoing but of a close weave and having a characteristic rigidity. It also includes similar straining cloth of human hair.
The language in the tariff schedule qualifies the types of straining cloths classifiable in this subheading as those "of a kind used in oil presses or the like." However, a careful reading of the language used in subheading 5911.40, HTSUSA, reveals that there is no requirement that the straining cloths in this provision be used in oil presses; rather, the term "or the like" is used which serves to broaden the types of straining cloths that are properly classifiable here. This language indicates that the drafters of the tariff schedule have included in their definition of "straining cloth" a much broader range of articles than those that are merely used in oil presses. Thus, according to the EN, straining cloths specifically include filter fabrics used for technical applications in machinery such as utilized for automotive air filters.
Protestant further asserts that the controlling legal case from the Court of International Trade is inappropriate for application to the subject merchandise because the GKD decision is only applicable to filtering materials which separate solid from liquid. The classification of filtration materials was addressed by the Court of International Trade (“CIT”) in GKD-USA, Inc. v. United States, 20 Ct. Int’l.Trade. 749 (1996) wherein the Court reviewed the classification of sludge dewatering filtering belts imported in material lengths. In GKD, the CIT consulted various lexicographic sources and determined that “ ‘straining cloth’ is generally referred to as ‘filter cloth’ “ and that “straining cloth is a type of filter medium required for the process of filtration.” GKD at 755. The Court further agreed with Customs that the language “or the like” found in subheading 5911.40 was broad enough to include a range of articles other than the oil presses which are eo nomine provided in the subheading. Id. at 758.
Customs disagrees with Protestant’s claim regarding the application of the GKD decision to the subject merchandise. The CIT did not limit the scope of subheading 5911.40, HTSUSA, to strictly the filtration of solids from liquid and the court’s decision is consistent with the definition provided in the ENs which is clearly broad enough to also include materials used for filtering solids from air. In affirming Customs classification of merchandise at issue in GKD, which is similar to the subject merchandise, within subheading 5911.40.0000, HTSUSA, the CIT set a precedent applicable to filter materials of all types.
The ENs to heading 5911, HTSUSA, specifically refer to filter fabrics used for filtering purposes including gas cleaning and dust collecting. The subject merchandise is therefore covered by the controlling GKD decision as well as the ENs to heading 5911, HTSUSA.
Furthermore, Customs has consistently classified various types of filter materials, similar to the subject material, as technical use fabric under subheading 5911.40.0000, HTSUSA. Protestant has claimed that subheading 5911.40, HTSUSA, is inappropriate for the subject merchandise because it filters solids from air rather than solids from liquids. However, in Headquarters Ruing letter (“HQ”) 955244, dated April 4, 1994, Customs classified filter materials which are specifically designed to filter air rather than solids from liquids in subheading 5911.40, HTSUSA.
In HQ 958415, dated March 26, 1996, a nonwoven filter material made of 100 percent polyester, used in desalination, chemical and waste treatment filtration operations, was classified as technical use fabric of subheading 5911.40.0000, HTSUSA. In HQ 954138, dated June 15, 1993, we classified air filter media made of a spunbonded nonwoven component and batting material as a technical use fabric of subheading 5911.40.0000, HTSUSA. See also HQ 950167, dated March 13, 1992, wherein Customs ruled that a diffusion filter fabric made of 100 percent polyester fibermat was classifiable as a technical use fabric.
Based on the established precedent provided by the Court of International Trade and prior Customs rulings as well as the ENs, Customs finds that the subject nonwoven material is properly classified in subheading 5911.40.0000, HTSUSA.
HOLDING:
The subject merchandise is classified in subheading 5911.40.0000, HTSUSA, as “Textile products and articles, for technical uses, specified in note 7 to this chapter: Straining cloth of a kind used in oil presses or the like, including that of human hair.” The general column one duty rate is 9 percent ad valorem.
The protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles Harmon, Acting Director
Commercial Rulings Division