CLA-2 OT:RR:CTF:FTM H242665 GaK
Port Director, Port of Buffalo
U.S. Customs and Border Protection
726 Exchange St., Suite 400
Buffalo, NY 14210
Attn: Kristine Dodge, Senior Import Specialist
RE: Application for Further Review of Protest No. 0901-13-100024; Tariff classification of felt filtration fabric
Dear Port Director:
This is in response to the Application for Further Review (“AFR”) of Protest No. 0901-13-100024, filed December 27, 2012, by counsel on behalf of Albarrie Canada Ltd. (“Albarrie” or “Protestant”). The AFR concerns U.S. Customs and Border Protection’s (“CBP”) tariff classification of felt filtration fabric under the Harmonized Tariff Schedule of the United States (“HTSUS”). We also considered a sample swatch submitted on May 14, 2015, supplemental information submitted on June 24, 2015, April 20, 2016, and a meeting held on August 23, 2016.
FACTS:
This AFR concerns the tariff classification and NAFTA tariff preferential treatment of felt filtration fabric entered on June 4, 2011, and liquidated on July 6, 2012. The merchandise is imported in rolls and cut and sewn to manufacture filter bags which collect dust in power plants. The filter bags filter particulates (solids) from air (gas). Albarrie imported the merchandise classified under subheading 5911.40.00, HTSUS, which provides for “[t]extile 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.”
In a letter dated December 14, 2011, CBP notified Albarrie that pursuant to Article 506 of the NAFTA and 19 C.F.R. Part 181, Subpart G, that CBP intended to visit Albarrie’s premises in order to determine whether the subject merchandise was originating for purposes of preferential tariff treatment under the NAFTA, as claimed on Albarrie’s Certificate of Origin, dated June 14, 2011. The entry at issue was suspended from liquidation on December 5, 2011. CBP visited Albarrie’s factory on April 18, 2012. On May 10, 2012, CBP issued a Notice of Action (CBP Form 29), which proposed to reclassify the merchandise from subheading 5911.40.00, HTSUS, to subheading 5602.10.90, HTSUS. In its response to the CF 29, Albarrie argued that the merchandise was properly classified as entered, under subheading 5911.40.00, HTSUS. CBP issued a second CF 29, notifying Albarrie that the proposed action had been taken. CBP further directed that all future shipments of the merchandise be entered under subheading 5602.10.90, HTSUS.
CBP liquidated the entry on July 6, 2012, under subheading 5602.10.90, HTSUS, which provides for, “[f]elt, whether or not impregnated, coated, covered or laminated: Needleloom felt and stitchbonded fiber fabrics: Other.” Albarrie argues in its AFR submission that the goods are properly classified in subheading 5911.90.00, HTSUS, as other textile products and articles, for technical uses.
A sample swatch provided was sent to CBP’s Laboratories and Scientific Services (“LSS”) for analysis. LSS report NY201551067 states the following:
The sample is a needleloom felt. The sample consists of two layers of man-made synthetic staple fiber webs bonded together. The sample weighs 594.2 grams per square meter and has no surface treatment with rubber/plastic material or any other material. The top surface may have been subjected to singing or similar hot roller treatment that partially melts and bonds some of the surface fibers.
Two layers of staple fiber webs have been subject to a needle punching process. There is no evidence of any thermal, mechanical or chemical bonding method used besides needle punching.
In its submission dated April 20, 2016, Albarrie alternatively argued that the subject merchandise was properly classified in subheading 5911.20, HTSUS, as bolting cloth, pursuant to Note 7(a)(iii), Chapter 59, HTSUS.
Finally, in its submission, Albarrie argues that pursuant to 19 U.S.C. § 1504, the subject entry liquidated by operation of law one year from the date of its entry into the United States. Specifically, Albarrie argues that pursuant to 19 U.S.C. § 1504(a)(1)(A), on June 14, 2012, the merchandise at issue was “deemed liquidated” at the rate of duty, value, quantity, and amount of duties asserted by Albarrie at the time of entry.
ISSUES:
Whether the imported felt filtration fabric is classified as “[f]elt, whether or not impregnated, coated, covered or laminated” under heading 5602, or as “[t]extile products and articles, for technical uses, specified in note 7 to this chapter” under heading 5911, HTSUS.
Whether the entry at issue was “deemed liquidated” at the rate of duty, value, quantity, and amount of duties asserted by Albarrie at the time of entry.
LAW AND ANALYSIS:
Initially, we note that the matter is protestable under 19 U.S.C. § 1515(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation for entries made on or after December 18, 2004. See Miscellaneous Trade and Technical Corrections Act of 2004, Pub. L. 108-429 § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3)(2006)).
Further review of Protest No. 0901-13-100024 is properly accorded to the Protestant pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs Courts. Specifically, the Protestant refers to the application of decisions reached by the courts regarding air filters.
I. Classification
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 GRIs may then be applied.
The 2011 HTSUS headings under consideration here are as follows:
5602 Felt, whether or not impregnated, coated, covered or laminated
* * *
5911 Textile products and articles, for technical uses, specified in note 7 to this chapter
5911.20 Bolting cloth, whether or not made up
* * *
5911.90 Other
Note 7 to Section XI, which covers Chapters 56 and 59 states the following:
For the purposes of this section, the expression “made up” means:
(a) Cut otherwise than into squares or rectangles;
(b) Produced in the finished state, ready for use (or merely needing separation by cutting dividing threads) without sewing or other working (for example, certain dusters, towels, tablecloths, scarf squares, blankets);
(c) Cut to size and with at least one heat-sealed edge with a visibly tapered or compressed border and the other edges treated as described in any other subparagraph of this note, but excluding fabrics the cut edges of which have been prevented from unraveling by hot cutting or by other simple means;
(d) Hemmed or with rolled edges, or with a knotted fringe at any of the edges, but excluding fabrics the cut edges of which have been prevented from unraveling by whipping or by other simple means;
(e) Cut to size and having undergone a process of drawn thread work;
(f) Assembled by sewing, gumming or otherwise (other than piece goods consisting of two or more lengths of identical material joined end to end and piece goods composed of two or more textiles assembled in layers, whether or not padded); or
(g) Knitted or crocheted to shape, whether presented as separate items or in the form of a number of items in the length.
Note 2 to Chapter 56 states:
The term “felt” includes needleloom felt and fabrics consisting of a web of textile fibers the cohesion of which has been enhanced by a stitch-bonding process using fibers from the web itself.
Note 7 to Chapter 59 states the following, in its entirety:
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 of 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).
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
EN to 56.02 states, in relevant part:
TEXTILE FABRICS AND OTHER TEXTILE PRODUCTS, FOR TECHNICAL USES, IN THE PIECE, CUT TO LENGTH OR SIMPLY CUT TO RECTANGULAR (INCLUDING SQUARE) SHAPE
…
This group covers only the textile fabrics and other textile products as defined in Note 7 (a) to the Chapter, and listed at (1) to (6) below.
* * *
(2) Bolting cloths. These are porous fabrics (for example, with a gauze, leno or plain weave), geometrically accurate as to size and shape (usually square) of the meshes, which must not be deformed by use. They are mainly used for sifting (e.g., flour, abrasive powders, powdered plastics, cattle food), filtering or for screen printing. Bolting cloths are generally made of hard twisted undischarged silk yarn or of synthetic filament yarn.
Straining cloth (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.
* * *
TEXTILE ARTICLES OF A KIND USED FOR TECHNICAL PURPOSES
All Textile articles of a kind used for technical purposes (other than those of headings 59.08 to 59.10) are classified in this heading and not elsewhere in Section XI (see Note 7 (b) to the Chapter); for example:
Any of the fabrics of (A) above which have been made up (cut to shape, assembled by sewing, etc.), for example, straining cloths for oil presses made by assembly of several pieces of fabric; bolting cloth cut to shape and trimmed with tapes or furnished with metal eyelets or cloth mounted on a frame for use in screen printing.
Textile fabrics and felts, endless or fitted with linking devices, of a kind used in paper-making or similar machines (for example, for pulp or asbestos-cement) (excluding machinery belts of heading 59.10).
Articles formed of linked monofilament yarn spirals and having similar uses to the textile fabrics and felts of a kind used in paper-making or similar machines referred to in (2) above.
Gaskets and diaphragms for pumps, motors, etc., and washers (excluding those of heading 84.84).
Discs, sleeves and pads for shoe polishing and other machines.
Textile bags for oil presses.
Cords cut to length, with knots, loops, or metal or glass eyelets, for use on Jacquard or other looms.
Loom pickers.
Bags for vacuum cleaners, filter bags for air filtration plant, oil filters for engines, etc.
The textile articles of this heading may incorporate accessories in other material provided the articles remain essentially articles of textile. [emphasis in original]
* * *
Albarrie’s submission is in agreement with CBP, insofar as the merchandise is needleloom felt. Albarrie, however, argues that the merchandise is bolting cloth, and is properly classified in heading 5911, HTSUS, pursuant to Note 7(a)(iii) to Chapter 59. Alternatively, Albarrie argues that the goods are “textile articles” for technical use, and are properly classified in heading 5911, HTSUS, pursuant to Note 7(b) to Chapter 59.
Historically, CBP classified air filtration fabric under subheading 5911.40, HTSUS, which provides for “[t]extile 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.” However, the Court of Appeals for the Federal Circuit (CAFC) in Air Flow Technology, Inc. v. United States, 524 F.3d 1287 (Fed. Cir. 2008) held that straining cloths are limited to products that separate solids from liquids. As such, the subheading cannot cover air filtration fabrics.
As a result of the CAFC’s decision in 2008, all prior rulings issued by CBP that classified air filter media in subheading 5911.40.00, HTSUS, as “straining cloth” were revoked by operation of law. Albarrie’s entry of its air filter media in June 2011 classified as “straining cloth” in subheading 5911.40.00, HTSUS, was therefore contrary to the CAFC’s decision.
In its AFR submission, Albarrie argues that the rolls are classified in subheading 5911.90, HTSUS, as textile articles, for technical uses, specified in Note 7 to Chapter 59, other. Specifically, Albarrie argues that its merchandise is classified therein pursuant to Note 7(b), as a “textile article.”
Note 7(a) provides for textile products in the piece, which refers to raw materials or fabrics in rolls which are used in the manufacture of a good. Note 7(b) provides for textile articles. CBP considers textile articles to be those which are produced in the finished state, ready for use without sewing or other working, also referred to as “made up” pursuant to Note 7 to Section XI, which covers Chapter 59. See Note 7 to Section XI. However, Albarrie’s products are imported in rolls and require cutting and sewing post-importation to be used as filters. Therefore they cannot be considered finished textile articles as specified in Note 7(b). This is further explained by the EN to 59.11 subsection (B) which clarifies that “textile articles” are any of the fabrics found in the EN to 59.11 subsection (A), “which have been made up (cut to shape, assembled by sewing, etc.).” Further, the enumerated items in the EN 59.11 subsection (B)(1) through (9) are all finished goods.
Albarrie next argues that the subject merchandise is classified in heading 5911, HTSUS, because it is bolting cloth. The EN to heading 5911 states that bolting cloths “are porous fabrics (for example, with a gauze, leno or plain weave), geometrically accurate as to size and shape (usually square) of the meshes…[t]hey are mainly used for sifting…filtering or for screen printing.” CBP has only issued four rulings which classify fabrics as bolting cloths: Headquarters Ruling Letter (“HQ”) 950733, dated December 28, 1993 (filtration medium for blood purification), New York Ruling Letter (“NY”) 896117, dated April 7, 1994 (screen-printing), NY 815642, dated October 10, 1995 (screen-printing), and NY N025649, dated May 2, 2008 (sifting/filtering/screening). In all of these cases, the bolting cloth was a woven fabric with square meshes used for sifting, filtering, or screen printing (emphasis added).
This interpretation is consistent with dictionary definitions for bolting cloth. See Merriam-Webster Online Dictionary (2017), available at http://www.merriam-webster.com/dictionary/bolting%20cloth (“bolting cloth: a firm fabric now usually of silk woven in various mesh sizes for bolting something (such as flour) or for use in screen printing, needlework, or photographic enlargements.”); and see Webster’s Dictionary 1828 (2017), available at http://webstersdictionary1828.com/Dictionary/bolt (“bolt, 3. To sift or separate bran from flour.”).
We note that Albarrie’s product is not used for any of these purposes. Albarrie’s product is used to filter air in dust collection systems. Moreover, Albarrie’s product is felt, rather than, woven fabric. As such it cannot be classified as bolting cloth of subheading 5911.20, HTSUS.
The subject fabric is made up of staple fibers. It has been subjected to a needle punching process, and there is no evidence of any thermal, mechanical or chemical bonding used, besides the needle punching. See NY 255540, dated December 22, 2015. As such, the goods are classified under subheading 5602.10, HTSUS, as “[f]elt, whether or not impregnated, coated, covered or laminated: Needleloom felt and stitch-bonded fiber fabrics.” See NY 894341, dated February 15, 1994; NY 893259, dated January 3, 1994; and NY N259455, dated July 27, 2015.
II. Deemed Liquidated
Title 19 U.S.C. § 1504 governs the liquidation of entries of merchandise into the United States. Albarrie argues in its AFR submission that the subject entry which entered on June 14, 2001 should be deemed liquidated by operation of law one year from the date of its entry into the United States, pursuant to Title 19 U.S.C. § 1504(a)(1)(A). Accordingly, it is necessary to determine whether the entry liquidated by operation of law.
19 U.S.C. § 1504(b) provides for the extension of the period in which goods have entered the United States must be liquidated. 19 U.S.C. § 1504(b) states:
(b) Extension
The Secretary of the Treasury may extend the period in which to liquidate an entry if –
(1) the information needed for the proper appraisement or classification of the imported or withdrawn merchandise, or for determining the correct drawback amount, or for ensuring compliance with applicable law, is not available to the Customs Service; or
(2) the importer of record or drawback claimant, as the case may be, requests such extension and shows good cause therefor.
The Secretary shall give notice of an extension under this subsection to the importer of record or drawback claimant, as the case may be, and the surety of such importer of record or drawback claimant. Notice shall be in such form and manner (which may include electronic transmittal) as the Secretary shall by regulation prescribe. Any entry the liquidation of which is extended under this subsection shall be treated as having been liquidated at the rate of duty, value, quantity, and amount of duty asserted by the importer of record, or the drawback amount asserted by the drawback claimant, at the expiration of 4 years from the applicable date specified in subsection (a) of this section.
Here, the subject entry entered the United States on June 14, 2011. The entry was suspended on December 5, 2011, after CBP issued Albarrie a letter notifying Albarrie of CBP’s intention to conduct a NAFTA verification visit in April 2012. The entry was therefore suspended properly pursuant to the statute, as CBP sought the information needed for the proper classification of the imported merchandise.
Title 19 U.S.C. § 1504(c) is also relevant here and provides:
(c) Notice of suspension
If the liquidation of any entry is suspended, the Secretary shall by regulation require that notice of the suspension be provided, in such manner as the Secretary considers appropriate, to the importer of record or drawback claimant, as the case may be, and to any authorized agent and surety of such importer of record or drawback claimant.
CBP records contained in the Automated Commercial Services (“ACS”) provide that the entry was suspended on December 5, 2011. This satisfies the notice requirement found in 19 U.S.C. § 1504(c). An ACS entry archive file query would have produced this information for Albarrie. Therefore, the entry was not deemed liquidated by operation of law one year from the date of entry.
HOLDING:
Pursuant to GRI 1, the subject merchandise is classified under heading 5602, HTSUS. It is specifically provided for under subheading 5602.10.90, HTSUSA, which provides for “[f]elt, whether or not impregnated, coated, covered or laminated: Needleloom felt and stitch-bonded fiber fabrics: Other: Other.” The 2011 column one rate of duty is 10.6 percent, ad valorem.
The protest should be DENIED.
You are to mail this decision, together with the CBP Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision Regulations and Rulings of the Office of Trade will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division