HQ H273379
CLA-2 OT:RR:CTF:TCM H273379 TSM
Mr. Calvin H. Ennis
Izumi America, Inc.
300 Tice Boulevard
Woodcliff Lake, NJ 07677
RE: Revocation of HQ 965174, HQ 965659, HQ 956908, HQ 956909, HQ 955244, HQ 954138, HQ 950167, NY 800857 and NY 863512; Classification of Nonwoven Air Filter Fabric; Revoked by Operation of Law; Airflow Technology, Inc. v. United States, 804 F.Supp. 2d 1292 (Ct. Int’l Trade 2011) on remand from Airflow Technology, Inc. v. United States, 524 F.3d 1287 (Fed. Cir. 2008).
Dear Mr. Ennis:
This is in response to your undated request for reconsideration of Headquarters Ruling Letter (HQ) 965174, dated July 11, 2002. In that ruling, CBP found that the subject merchandise, identified as AXTAR® polyester material, is classified under subheading 5911.40.00, HTSUS, which provides for “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.”
In your request, you explain that the merchandise at issue is a nonwowen product from Japan, known under the trade name of AXTAR. The product is made of randomly laid-up thermally bonded 100 percent polyester continuous filaments. It is not a felt, is not impregnated, coated, covered or laminated with other material. You state that the product is manufactured in weighs of between 30 grams per square meter and 260 grams per square meter. It is imported in width of between 650 mm to 2.1 meters and in rolls of 300 to 400 meters each. The width and roll length may vary in production. The specific merchandise in question is G2260-1s that is 260 grams per square meter, 2.05 meters wide and put up in rolls of 400 meters each.
In HQ 965174, CBP noted that “AXTAR® G2260-1S appears to be engineered and manufactured as an industrial grade filter media … used in dust collection equipment.” CBP explained the rationale for classification under subheading 5911.40, HTSUS, as follows:
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 fibers (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.
Thus, according to the EN, straining cloths specifically include filter fabrics used for technical applications in industrial dust collecting systems.
In Airflow Technology, Inc. v. United States, 524 F.3d 1287 (Fed. Cir. 2008), the U.S. Court of Appeals for the Federal Circuit examined a nonwoven fabric used in air filtration mechanisms within industrial paint spray booths. Citing to several dictionary definitions, the court concluded that “the term ‘straining cloth’ encompasses only products that separate solids from liquids.” Id. at 1292. On remand, the U.S. Court of International Trade applied this definition to the nonwoven fabric and determined that it could not be classified as straining cloth of subheading 5911.40, HTSUS. 804 F. Supp. 2d 1292 (Ct. Int’l Trade 2011). Therefore, the court classified the nonwoven air filter fabric under heading 5603, HTSUS, which provides for “Nonwovens, whether or not impregnated, coated, covered or laminated.” Id.
Applying the decisions in the Airflow cases, we note that “straining cloth” of subheading 5911.40, HTSUS, only encompass fabrics which separate solids from liquids. Id. Therefore, HQ 965174, which classified AXTAR® air filtration fabric in subheading 5911.40, HTSUS, is revoked by operation of law, as are eight other rulings on substantially similar merchandise. The AXTAR® fabric is properly classified under subheading 5603.14.90, HTSUS, which provides for “Nonwovens, whether or not impregnated, coated, covered or laminated: Of man-made filaments: Weighing more than 150g/m²: Other.”
EFFECT ON OTHER RULINGS:
HQ 965174, dated July 11, 2002, HQ 965659, dated August 27, 2002, HQ 956908, dated January 31, 1995, HQ 956909, dated January 31, 1995, HQ 955244, dated April 4, 1994, HQ 954138, dated June 15, 1993, HQ 950167, dated March 13, 1992, NY 800857, dated August 15, 1994, and NY 863512, dated June 11, 1991, are revoked by operation of law. See Airflow Technology, Inc. v. United States, 804 F.Supp. 2d 1292 (Ct. Int’l Trade 2011) on remand from Airflow Technology, Inc. v. United States, 524 F.3d 1287 (Fed. Cir. 2008).
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division